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FOUNDATION v. THOMAS

December 22, 1986

Foundation on Economic Trends, et al., Plaintiffs,
v.
Lee M. Thomas, et al., Defendants


Gesell, United States District Judge.


The opinion of the court was delivered by: GESELL

GESELL, UNITED STATES DISTRICT JUDGE

 Plaintiffs seek an order requiring the Environmental Protection Agency ("EPA") to modify the procedures under which it authorizes persons to release genetically engineered pesticides into the environment. They assert that EPA has erred in refusing to promulgate regulations requiring such persons to document their financial capability to redress and abate any potential harms that may result from such releases. Plaintiffs seek a ban on all releases until EPA has so acted. Defendants, who are various employees of EPA sued in their official capacity, have moved to dismiss or in the alternative for summary judgment. The issues have been fully briefed.

 Background

 Plaintiff Foundation on Economic Trends ("FOET"), of which plaintiff Jeremy Rifkin is president, is a private, non-profit organization which advocates limits on genetic engineering. Plaintiffs, invoking the Administrative Procedure Act ("APA"), 5 U.S.C. § 500-706 (1982), petitioned EPA for agency rulemaking on May 7, 1986 under the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 135 to 135k (1982), as amended by the Federal Environmental Pesticide Control Act of 1972 and the Federal Pesticide Act of 1978, 7 U.S.C. §§ 136 to 136y (1982 & Supp. III 1985) (collectively "FIFRA").

 FIFRA requires pesticides to be registered by EPA. See 7 U.S.C. § 136a. To qualify for registration, in part, a pesticide must function as intended without causing "unreasonable adverse effects on the environment," 7 U.S.C. § 136a(c)(5)(C). "Unreasonable adverse effects" are those which impose "any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide." 7 U.S.C. § 136(bb). To obtain registration of a pesticide a company must furnish EPA with extensive data on the pesticide, see 7 U.S.C. § 136a(c)(1)(D).

 In order to produce the required data preliminary field tests of the pesticide in the environment are often required. Before such tests are conducted on any substantial scale, the person applying is required to obtain an "experimental use permit" and demonstrate the experiment will generate registration data and will not cause unreasonable adverse effects. See 7 U.S.C. § 136c; 40 C.F.R. § 172.10(a) (1986). EPA exercises broad continuing supervision over experimental uses to ensure the public safety. See, e.g., 7 U.S.C. § 136c(e); 40 C.F.R. §§ 172.5(c) & (d), 172.8(a), 172.10(b) and 172.11(a) (1986).

 Experimental use permits generally are not required for field tests involving less than ten acres of land. See 40 C.F.R. § 172.3 (1986). However, since 1984 EPA has required advance permission for release of genetically engineered microbial pesticides regardless of acreage affected, on the belief that because these pesticides can reproduce and spread beyond the application site, they may raise special testing concerns that need to be monitored. Before permitting experimental field use of such pesticides, EPA conducts a thorough review of the risks and benefits of the test, choosing on a case-by-case basis whether to grant or deny the application, impose special restrictions, or require additional data before action. *fn1"

 By letter dated May 7, 1986 plaintiffs petitioned EPA to promulgate, through appropriate rulemaking procedures, regulations establishing "minimum financial responsibility standards" to be required from applicants for experimental use permits, and to establish equivalent standards for permanent registration of such pesticides. *fn2" Stating their concern with the agency's current procedures they urged that the risks posed by such releases, although still unquantified, are of potentially devastating proportions, and suggested that EPA "currently does not have an adequate program for assessing, controlling, and assuring remedial actions and accountability for the environmental risks presented by the deliberate releases of recombinant organisms." *fn3"

 In support of their proposal, plaintiffs pointed out that "the demonstration of financial responsibility has been required in other situations involving much more finite risks to man and the environment" such as activities posing danger to water quality or involving toxic wastes. They also noted that FIFRA requires EPA to balance the risks and benefits of pesticides to both man and the environment, and argued that "to the extent that an applicant company cannot demonstrate adequate financial responsibility, then the public health and environment is exposed to a risk for which there will be no redress in the event of resulting harm." Plaintiffs concluded that proof of financial responsibility "must, as a matter of sound public policy, be required" and that under FIFRA the EPA "has the inherent authority to require evidence of financial responsibility and to establish appropriate standards therefor." *fn4"

 EPA considered the petition and by letter dated June 2, 1986 indicated its rejection of it and its conclusion that there was no basis for the proposed rulemaking. *fn5" EPA noted specifically that "without an explicit directive from Congress, we do not believe that as a general matter the Agency should become involved in the liability insurance aspects of pesticide use." After pointing out plaintiffs' recognition that Congress had expressly required financial responsibility standards in other areas of environmental concern, *fn6" EPA noted that "no such provision is contained in FIFRA" and therefore it "must conclude that the administrative imposition of financial responsibility requirements would be beyond congressional intent under FIFRA."

 EPA also explained that plaintiffs had provided no basis for imposing greater strictures on the release of genetically altered pesticides than on more conventional pesticides. It pointed out that the petition failed to provide a rationale for treating genetically altered pesticide products differently from others and asserted that although "the unique characteristics" of such products "may warrant a somewhat different review process, we are not aware of any evidence which demonstrates that organisms mutated through recombinant DNA techniques are, as a class, inherently riskier than organisms mutated through other techniques or than conventional chemical products." Plaintiffs have submitted no further evidence subsequent to EPA's response. They continue to press the argument that EPA has recognized a risk difference through its policy of requiring permits for all experimental releases of genetically altered materials.

 Standing

 Under the judicial review provision of the APA, 5 U.S.C. § 702 (1982), plaintiffs may sue if they are "adversely affected or aggrieved by agency action," which requires that they establish standing to sue under article III's case-or-controversy requirement and satisfy related prudential requirements. Thus plaintiffs must allege: 1) injury in fact; 2) which is "fairly traceable" to EPA's "allegedly unlawful conduct"; and 3) is "likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984). See also Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). Prudentially they must overcome several general limits, against: 1) representation of the rights of third parties; 2) adjudication of ...


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