Plaintiffs, all residents of Washington, D.C., regularly use and enjoy the United States' environmental resources, including parks and other recreational lands. Complaint para. 5. They assert that this use and enjoyment is dependent on the welfare and biological integrity of domesticated and wild animals. Id.; Pltf. Opp. at 21. USDA-APHIS's grant of a license for Omnivac, by permitting release of a genetically altered virus vaccine into the environment, allegedly threatens to harm domestic and wild animals, thus injuring plaintiffs. Id. Although the genetically altered gene has been released, plaintiffs have not shown that harm to animals has actually occurred. Accordingly, actual injury to the environment and to its ecosystems, and plaintiffs' use and enjoyment thereof, has not been shown.
Plaintiffs contend that the threat of potential environmental harm is nonetheless a cognizable injury under 5 U.S.C. § 702. Threatened environmental injury may be sufficiently "personal" to satisfy constitutional and statutory standing requirements only if presented by a plaintiff with a "particularized" injury. E.g., United States v. SCRAP, 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973); Sierra Club v. Morton, 405 U.S. 727, 735, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972). Although plaintiffs' allegation of injury would likely meet the particularity requirement if tested on a motion to dismiss, this Circuit recently made clear that the plaintiff must make a "greater showing" of specific, personalized injury in response to a summary judgment motion. Wilderness Society v. Griles, 262 U.S. App. D.C. 277, 824 F.2d 4, 15-17 (D.C. Cir. 1987).
In Wilderness Society, plaintiffs challenged a policy of the Bureau of Land Management (BLM) of the Department of Interior changing the method of measuring Alaskan land to be shifted from federal to state or native ownership. Id. at 7. Plaintiffs alleged that they used federal public lands in Alaska, that BLM had transferred land under the new policy, and that the regulations required transferred lands to abut existing native holdings. Id. at 16. The court stated that while these allegations would have overcome a motion to dismiss for lack of standing, they were insufficient to oppose summary judgment, noting that "since [plaintiffs] do not know which of the many possible abutting lands will actually be affected by the new policy, [they] cannot tell us whether the lands they intend to use are among them." Id. As a result, the plaintiffs failed to show an injury sufficiently particularized to have standing to challenge the policy. Id. at 17.
In order to meet this particularized environmental injury requirement, plaintiffs herein must identify a specific natural resource which they use and enjoy, and which will be injured, or has been injured, by release of the TK- pseudorabies vaccine. See id. at 12. Unless plaintiffs establish a sufficient likelihood of occurrence of the threatened injury, "the threat of injury would be too amorphous or uncertain; it would be no greater for the plaintiff than for any person simply opposed to the governmental action in question." Id. The plaintiffs have failed to show specificity of resource, use, enjoyment, and injury, and accordingly lack standing to raise their VSTA and APA claims.
B. Plaintiffs' Claim Under NEPA
Plaintiff FET has standing to seek review of USDA's compliance with NEPA, based on its claim that the agency's noncompliance affected FET's ability to provide information to the public. E.g., Scientists' Institute for Public Information, Inc. v. AEC, 156 U.S. App. D.C. 395, 481 F.2d 1079, 1086-87 n.29 (D.C. Cir. 1973); see also Foundation on Economic Trends v. Lyng, 260 U.S. App. D.C. 159, 817 F.2d 882 (D.C. Cir. 1987) (reviewing gravamen of plaintiffs' challenge to USDA's compliance with NEPA; implicitly assuming existence of standing). FET alleges that USDA-APHIS's environmental assessment ("EA") on Omnivac was inadequate.
The Court must ordinarily ask four questions in deciding whether an agency's finding of "no significant impact" in an environmental assessment is arbitrary and capricious:
(1) whether the agency took a "hard look" at the problem; (2) whether the agency identified the relevant areas of environmental concern; (3) as to the problems studied and identified, whether the agency made a convincing case that the impact was insignificant; and (4) if there was an impact of true significance, whether the agency convincingly established what changes in the project sufficiently reduced it to a minimum.
Cabinet Mountains Wilderness v. Peterson, 222 U.S. App. D.C. 228, 685 F.2d 678, 682 (D.C. Cir. 1982). Within this framework, review of USDA-APHIS's decision not to prepare an EIS "must be undertaken with a view merely to determine if the agency has taken the 'hard look' at the environmental consequences of the action that NEPA requires." Foundation on Economic Trends v. Weinberger, 610 F. Supp. 829, 838-39 (D.D.C. 1985). To survive review, the agency's environmental assessment "must indicate, in some fashion, that the agency has taken a searching, realistic look at the potential hazards and, with reasoned thought and analysis, candidly and methodically addressed those concerns." Id. at 841.
The EA prepared on Omnivac found that use of recombinant TK- pseudorabies vaccine would not have significant impact on the environment. The EA discusses the characteristics of existing strains of wild and modified pseudorabies, describing among other factors the transmission, range, pathogenesis, latency, and survival of the pseudorabies vaccine. The EA then presents the agency's review of the same characteristics of the TK- pseudorabies vaccine, and summarizes the data supporting the scientific conclusions. USDA-APHIS concluded that the TK- virus is stable, avirulent, unlikely to be transmitted, and unable to establish latency, and accordingly, would have no significant impact on the environment.
FET initially asserts that USDA-APHIS failed to consult with other agencies, internal advisory committees, and the public, in violation of applicable regulations. None of the regulations, internal memoranda, or policy statements requires the review plaintiffs seek. Applicable APHIS regulations implementing NEPA require public involvement where program changes will have significant adverse effects on the environment, when APHIS intends to prepare an EIS, and when a draft or final EIS or a finding of no significant impact is available. APHIS Guidelines Concerning Implementation of NEPA Procedures, 44 Fed. Reg. 50,381, 50,383 (Aug. 28, 1979). Applicable USDA regulations leave to the agency's discretion when to seek additional public involvement. 7 C.F.R. § 1b.1(a) (1987) (incorporating Council on Environmental Quality ("CEQ") regulations); 40 C.F.R. § 1506.6 (1987) (CEQ regulation concerning public involvement). The guidelines upon which FET relies to establish interagency and advisory committee review requirements apply, if at all, to the licensing process, and are not mandated by NEPA and its implementing regulations.
To the extent regulations and protocol required preliminary consultation, USDA-APHIS provided it.
FET challenges the substance of USDA's conclusions in the EA, delineating what it considers to be deficient testing and inadequate review of data submitted in support of the application. FET's principal concern is with the "safety data" USDA received and compiled. FET raises legitimate complaints about the failure of the original researcher, Dr. Saul Kit, to comply with established reporting and notification requirements in the conduct of an open air test of the vaccine. Even if USDA knew of Dr. Kit's transgressions, the Court cannot conclude that it was "arbitrary and capricious" to consider the data collected.
FET finally argues that the tests and data reflected in the EA do not resolve issues it asserts are central to the nature and effect of Omnivac. USDA presents evidence contradicting these claims, rebutting both the assertion that specific issues were not resolved and the claim that the issues are "central" to the nature and effect of the vaccine.
After careful review of the record, the Court notes that some of the testing "deficiencies" FET recounts reflect the nascency of the field of genetic engineering rather than truncated examination of the product by the agency.
The Court is not in the same position as the agency in its review of the scientific data submitted, and cannot replace the agency's judgment with its own. Upon examination of the environmental assessment and the supporting Administrative Record, the Court concludes that the finding of no significant impact was not arbitrary and capricious. Accordingly, summary judgment shall be granted in defendants' favor under the NEPA claim.
An appropriate order accompanies this opinion.
ORDER OF DISMISSAL
Upon consideration of the pending motions, memoranda, and the administrative record, and in accordance with the accompanying opinion, it is this 7th day of January, 1988,
ORDERED that plaintiffs' motion for summary judgment is denied; defendants' motion for summary judgment is granted; and this case is dismissed in its entirety.