or informal, record before this Court. Consequently, as to the University of California experiment, the Court finds that the plaintiff has also demonstrated a sufficient showing of probable success to support a preliminary injunction.
The Court has taken account of the various defenses offered by the University. The University's laches defense will probably not impede the plaintiffs' likely success because, as University counsel admitted at oral argument, the experiment could not have been performed this winter due to climactic conditions. Moreover, because of Congress's avowed environmental goals in enacting NEPA, courts in general have not looked with favor on the laches defense in environmental cases. Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 779 (9th Cir.1980). In short, the Court does not consider the plaintiffs' delay in bringing suit unreasonable nor can the Court find any prejudice to the defendants sufficient to invoke the laches defense.
The Court is also unpersuaded of the materiality to this case of EPA's potential jurisdiction under FIFRA over the University's experiment. Moreover, EPA's registration process under FIFRA is not the functional equivalent of NEPA compliance. Save our Ecosystems v. Clark, 747 F.2d 1240 (9th Cir. 1984).
In a similar fashion, the Court cannot conclude that the plaintiffs' failure to seek relief from NIH prior to NIH approval of the University experiment will bar plaintiffs' claims under NEPA. After all, this experiment is the first deliberate release experiment to be approved. Previous public commentators had filed comments indicating that NEPA required an environmental document for any deliberate release experiment. Thus, NIH and the University can hardly claim surprise when the plaintiffs revived this claim in the form of a lawsuit after NIH had rejected the original demand from other public commentators.
In this Court's view, the plaintiffs have made a satisfactory showing that they are likely to succeed on the merits of their NEPA and APA claims. The Court has also evaluated the possible injury that issuance of a preliminary injunction may cause both the federal defendants and the University of California. The Court would like to state for the record that the University's decision, in not going forward with the first approved experiment until the doubts about its legality are answered, is an act to be admired by the academic community. Rather than diminishing its ability to recruit qualified scientists, the University's conduct can only enhance its position as a leading, responsible center for scientific research. The federal defendants, also, will not suffer any significant injury in delaying approval of deliberate release experimentation until the merits of this litigation can be resolved. The public interest clearly favors the maintenance of the status quo until the merits of this litigation are reached.
If the first deliberate release experiment were to go forward at this time the plaintiffs would suffer irreparable injury. In arriving at this conclusion the Court has carefully evaluated the nature of the NEPA violations which the plaintiffs have alleged. The NEPA violations, if proven, are not merely "technical" violations which the Court would be justified in ignoring. Cf. State of Alaska v. Andrus, 188 U.S. App. D.C. 202, 580 F.2d 465, 485 (D.C.Cir.1978). See also Friends of River v. FERC, 231 U.S. App. D.C. 329, 720 F.2d 93, 106-07 (D.C.Cir.1983) (substantial compliance with NEPA in combination with futility of remand justifies approval of otherwise inadequate agency EIS). To the contrary, the substantial NEPA violations which the plaintiffs have alleged would probably justify equitable relief on their own regardless of the often stated "presumption" in favor of strict enforcement of NEPA. See State of Alaska v. Andrus, 580 F.2d 465 (D.C.Cir. 1978); State of Cal. v. Bergland, 483 F. Supp. 465, 498 (E.D.Cal.1980).
In summary, the Court has reviewed the decision of the NIH Director: (1) not to issue an environmental impact statement for the 1978 revision to the NIH Guidelines which provided authority to permit deliberate release experimentation by NIH grantees; (2) not to issue any broad, programmatic environmental impact statement addressing the general environmental issues presented in NIH approval of deliberate release experiments; and (3) not to issue an environmental assessment or an environmental impact statement addressing the specific environmental issues associated with the first deliberate release experiment to be conducted under the revised NIH Guidelines. Although the first decision may more appropriately be classified as a decision deferred than a policy choice, the second decision clarifies any ambiguity as to the Director's intent with respect to addressing the general environmental consequences of deliberate release experimentation. The final decision not to support the very first deliberate release experiment with even an environmental assessment, especially when taken together with the Director's previous actions, strongly suggests the absence of a hard look inquiry. Having so concluded, the Court finds it unnecessary to discuss the other contentions advanced by the plaintiffs.
For the foregoing reasons, the Court will grant the plaintiffs' motion for a preliminary injunction. This Memorandum and Order will constitute the Court's findings of fact and conclusions of law. The Court recognizes the wisdom behind the comments of University counsel that the present system for approving deliberate release experiments, although flawed, is the only one available. Nonetheless, NEPA envisions that there will be a record of the environmental debate, not merely the conclusions, regarding major federal action significantly affecting the environment. Because of the limited record left for this Court's review, a preliminary injunction is justified at this time.
Wherefore, it is this 16th day of May, 1984
ORDERED that the plaintiffs' motion for a preliminary injunction be and hereby is granted, and it is
FURTHER ORDERED, that the defendants Margaret M. Heckler, Secretary of the Department of Health and Human Services, James E. Wyngaarden, Director of the National Institutes of Health, and Richard M. Krause, Director of the National Institute of Allergy and Infectious Diseases, National Institutes of Health, be and hereby are enjoined from:
Approving or continuing to approve experimentation involving the deliberate release of recombinant DNA under § III-A-2 of the 1983 revised NIH Guidelines, or its predecessor sections such as § III-A-2 of the l982 revised NIH Guidelines or § I-D-4 of the 1978 revised NIH Guidelines until such time as the Court enters final judgement on the merits of counts one and two of plaintiffs' second amended complaint for all applications which have been made or will be made other than those submitted pursuant to § VI of the 1983 Guidelines or its predecessor sections, and it is
FURTHER ORDERED, that the defendant Regents of the University of California be and hereby is enjoined from proceeding with the deliberate release experiment approved by NIH on June 1, 1983 at 48 Fed. Reg. 24549 (1983) until such time as the Court enters final judgment on the merits of counts one and two of plaintiffs' amended complaint.