Opposition Brief — Merrell v. Thomas

Supreme Court, U.S.

FILED

F\

\2 ) UG 21 1987

No. 87-52 JOSEPH F. SPANIOL, JR,

ae Aenea meneame ee en

In the Suprenv Court of the United States

OCTOBER TERM, 1987

PAUL E.. MERRELL, PETITIONER

Vv.

LEE THOMAS, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

CHARLES FRIED

Solicitor General

ROGER J. MARZULLA

Acting Assistant Attorney General

PETER R. STEENLAND, JR.

JOHN A. BRYSON

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the procedural requirements of the Na-

tional Environmental Policy Act, 42 U.S.C. 4321 et

seq., are applicable to decisions by the Environmen-

tal Protection Agency granting registration applica-

tions under the Federal Insecticide, Fungicide, and

Rodenticide Act, 7 U.S.C. (& Supp. III) 136 et seq.

(1)

TABLE OF CONTENTS

Page

a seacaiiaiuhilianteinacatalonsonenaseuiasioens 1

SS a OO eae 1

a a. oiidenannspepanniondiiqnghebhtione 2

Argument sa SPI OE a a 7

ESE RSE ae ne En PE 14 :

TABLE OF AUTHORITIES

Cases:

Amoco Oil Co. v. EPA, 501 F.2d 722 (D.C. Cir.

IN SOG eee eae Ne nS ae 13

Anaconda Co. yv. Ruckelshaus, 482 F.2d 1301 (10th

ae acilnainesens 13

Brown v. General Services Administration, 425

i alagcninonse 12

EDF, Inc. v. EPA, 489 F.2d 1247 (D.C. Cir. 1973) .. 13

EDF, Inc. v. Blum, 458 F. Supp. 650 (D.D.C.

Seth had 0S 13

Flint Ridge Development Co. v. Scenic Rivers

Pe ee Bik ee, Bei: | 7, 8, 11, 12

Gulfport Oil Corp. v. Copp Paving Co., 419 U.S.

ERENT ail ane ee 10

Kleppe v. Sierra Club, 427 U.S. 390 (1976) ............. 7,13

Maryland v. Train, 415 F. Supp. 116 (D. Md.

at MEL AE et ac 13

Morton v. Mancari, 417 U.S. 535 (1974) -............... 12

Portland Cement Ass’n Vv. Ruckelshaus, 486 F.2d

375 (D.C. Cir. 1973), cert. denied, 417 U.S. 921

Te csicsaieinnioesigiive 12

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984)... 2, 3,4

Tra V. ee See Ue. 166 (3078) ......-...................... 12

United States v. SCRAP, 412 U.S. 669 (1973) ......... 11

Warren County v. State of North Carolina, 528 F.

MB 8 ee | | Sa 13

Watt v. Alaska, 451 U.S. 259 (1981) .........0.00000000..... 11,12

(IIT)

IV

Cases—Continued: Page

Weinberger v. Catholic Action/Peace Education

Progfect, 464 US. 190 (IGGL) on e..0....00c0.c0csccec00000s 11, 12

Weyerhaeuser Co. Vv. Costle, 590 F.2d 1011 (D.C.

Ss TE Sissies aio sicacatee entice traicnsoretintane: 13

Wyoming v. Hathaway, 525 F.2d 66 (10th Cir.

1975), cert. denied, 426 U.S. 906 (1976) ............. 13

Statutes:

Federal Environmental Pesticide Control Act of

1972, Pub. L. No. 92-516, § 2, 86 Stat. 973 ..........

re a I een haces ceiede ae scn ses scsesenes :

5 Ole) (2) (ie), Oe ee Wee «.......-....-.-- 00...

ED Gag We ie OO i crcsccercccenentscnesanscnccnnsacne

§ 3(c) (4), 86 Stat. 979-980...

§ 3(c) (5) (C)-(D), 86 Stat. 980-981 ........

GGT Gary y We I sain cn nnn snnnscensnneee

§ 6(b), 86 Stat. 964-965 _ nn... anne

ee

Se I IE iailer asecttcnrecivnrnsennencitineeaeb nan ctestndncs

Oe I I agen preticsuionippsa seniasnnteebnactoncanten

III MI ier as hie ipdaeseciscs iced ntcicanntiorseepanie

Federal Insecticide, Fungicide, and Rodenticide

Act, 7 U.S.C. (& Supp. ITI) 136 et seq.

PPR WOwWWwW PP RP WW PD

§ $(c) (3), 7 U.S.C. 186a(c) (8) ...................2022.. 8

§ 3(c) (8), 7 U.S.C. 136a(c) (8) .......................... 5,9

Bg) Be Fk |: BAR enn 9

§ 10(d), 7 U.S.C. (& Supp. III) 186h(d) .......... 5,9

§ 10(d) (1) (A), 7 U.S.C. 136h(d) (1) (A) —..... 5

§ 10(d) (1) (B), 7 U.S.C. 136h(d) (1) (B) -....... 5

§ 10(d) (1) (C), 7 U.S.C. 136h (d) (1) (C) ....... 5

FU Beg 8 Tf: acerca 5,9

Ch. 125, § 3(a) (1), Gi Stat. 166 ........................ 2

Federal Pesticide Act of 1978, Pub. L. No. 95-396,

RL ee ee Re RL eT orkt ON 4

Freedom of Information Act, 5 U.S.C. (& Supp.

ERE age ene a mE EE OUT ee PENT ee ee 11

National Environmental Policy Act, 42 U.S.C. (&

SI, ee SI Oe ON a oseaknnel psieunsdeenntdeeeaiavpeaioen 6,7

Reorg. Plan No. 3 of 1970, 3 C.F.R. 1072 (1969-

I SI siren sel ae eae 2

Miscellaneous:

TER Coe, Tete. Be CGD orn cserssinrscccetnstngerens

H.R. Conf. Rep. 92-1540, 92d Cong., 2d Sess.

ho: TRAPPE SS Rees Palme oe ae eran er ate kee

H.R. Rep. 95-663, 95th Cong., Ist Sess. (1977) .......

S. Conf. Rep. 95-1188, 95th Cong., 2d Sess. (1978) ..

S. Rep. 92-838, 92d Cong., 2d Sess. (1972) :

Bs. Be ceiciasite nace tansisnaprincteesemcaahanes tliionsiiedisinipuiptaas

S. Rep. 92-970, 92d Cong., 2d Sess. (1972) ..............

S. Rep. 94-452, 94th Cong., Ist Sess. (1975) -........ ‘a

Iu the Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-52

PAUL E. MERRELL, PETITIONER

Vv.

LEE THOMAS, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A)

is reported at 807 F.2d 776. The opinion of the dis-

trict court (Pet. App. C) is reported at 608 F. Supp.

644.

JURISDICTION

The judgment of the court of appeals was entered

on December 31, 1986. The petition for rehearing

(1)

2

was denied on April 6, 1987 (Pet. App. B). The peti-

tion for a writ of-certiorari was filed on July 3, 1987.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

1. The Federal Insecticide, Fungicide, and Roden-

ticide Act (FIFRA), 7 U.S.C. (& Supp. III) 136 et

seq., regulates the marketing and use of pesticides.

See Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984).

Since the enactment of FIFRA in 1947, Congress has

required that any pesticide product distributed in in-

terstate commerce be registered with the federal gov-

ernment. Ch. 125, § 3(a) (1), 61 Stat. 166. See Mon-

santo, 467 U.S. at 990-991.’ As originally enacted the

statute regulated cnly the labeling and marketing of

pesticides. In 1972, Congress revised the statute exten-

sively to deal with heightened concerns about the en-

vironmental effects of pesticide use and with prob-

lems that had arisen in the registration system (Fed-

eral Environmental Pesticide Control Act of 1972,

Pub. L. No. 92-516, 86 Stat. 973). While recognizing

a need for significantly increased environmental pro-

tection and_a desire for more public disclosure of in-

formation on the effects of pesticides, Congress also

concluded that pesticides produce substantial benefits

and that the needs of pesticide producers to protect

trade secrets and confidential business information

should be accommodated. See S. Rep. 92-838, 92

Cong., 2d Sess. 1-5 (1972). In the 1972 amendments,

1 The Department of Agriculture administered the pesticide

registration program until 1970, when the newly-created En-

vironmental Protection Agency succeeded to these responsi-

bilities. Reorganization clan No. 3 of 1970, 35 Fed. Reg.

15623 ;xs Monsanto, 467 U.S. at 991.

3

Congress set about the task of accommodating these

disparate interests.

When the 1972 amendments became effective

FIFRA directly regulated, for the first time, pesticide

use as well as pesticide labeling and marketing

(Monsanto, 467 U.S. at 991-992). In addition, the

amendments supplied a new substantive criterion for

registration: that the pesticide would not cause

“unreasonable adverse effects on the environment”’

(§ 3(c) (5) (C)-(D), 86 Stat. 980-981), which Con-

gress defined as “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” (§ 2(bb), 86 Stat. 979). The legisla-

tion also required the Environmental Protection

Agency (EPA) to apply the new standard to all pre-

viously registered pesticides and to review and re-

register these products. (§ 4(c) (2), 86 Stat. 999).

The new standard was also incorporated into the ad-

ministrative procedures for cancellation and suspen-

sion of pesticides (§$ 6(b) and (c), 86 Stat. 984-985).

Another feature of the 1972 amendments was the

establishment of a mandatory licensing scheme for

the health and safety data applicants were required

to submit in order to obtain a registration. This sys-

tem permitted EPA to consider data submitted by

one company to approve applications for similar prod-

ucts from other persons (§ 3(c)(1)(D), 86 Stat.

979-980). See Monsanto, 467 U.S. at 992. Congress

also addressed the question of public disclosure of

data submitted to EPA by requiring the agency to

publish a notice in the Federal Register of each ap-

plication for registration if the pesticide contained

“any new active ingredient or it would entail a

changed use pattern,” to allow 30 days for public

4

comment (§ 3(c) (4), 86 Stat. 979-980). EPA was

further directed to make the data required for regis-

tration available to the public within 30 days of reg-

istration (§ 3(c)(2), 86 Stat. 980). This require-

ment, however, was specifically qualified by the pro-

visions of Section 10, 86 Stat. 989, which protected

the property interests of applicants by permitting

them to designate portions of their submissions to

EPA as trade secrets or confidential business infor-

mation, and which prohibited EPA from disclosing

that information if the agency concluded the data

“contain[ed] or relat[ed]” to trade secrets or con-

fidential business information.’

These provisions, particularly the definition of

trade secrets, were the subject of much litigation

that led to decisions which effectively prevented the

disclosure of health and safety data and barred con-

sideration by EPA of such data to register other

pesticide products. See Monsanto, 467 U.S. at 998.

To correct this and other problems, Congress again

amended the FIFRA in the Federal Pesticide Act of

1978, Pub. L. No. 95-396, 92 Stat. 819. The 1978

amendments continued the prohibition on disclosure

of trade secrets and confidential business informa-

tion, but with a specific qualification to authorize dis-

closure of health and safety data after registration

2 The sole exception to this ban on disclosure permitted

EPA, “when necessary to carry out the provisions of this

Act,” to reveal information relating to formulas to other Fed-

eral agencies or “‘at a public hearing or in findings of fact

issued by the Administrator [of EPA]” (§10(b), 86 Stat.

989). The Administrator was required to notify the applicant

who submitted the data 30 days before any proposed release

of information in order to provide the applicant an oppor-

tunity to seek judicial review (§ 10(c), 86 Stat. 989).

5

(7 U.S.C. (& Supp. III) 136h(d)).* Congress also

enacted protections to guard against disclosure to for-

eign and multinational pesticide producers either be-

fore or after registration: Section 10(g) prohibits

EPA from knowingly disclosing any submitted infor-

mation to such entities or to persons intending to

deliver the information to such entities (7 U.S.C.

136h(g) ).

The 1978 amendments also added a _ provision

(§ 3(c) (8) ) intended to govern EPA’s public admin-

istrative review of the risks and benefits of any pesti-

cide, a review EPA undertakes before deciding

whether to conduct formal proceedings to cancel, sus-

pend, or deny a registration (7 U.S.C. 1386a(c) (8) ).

EPA may not conduct such a public review unless it

“is based on a validated test or other significant evi-

dence raising prudent concerns of unreasonable ad-

verse risk to man or the environment” (ibid.).*

2. Petitioner brought this action seeking to can-

cel the registration of seven herbicides licensed un-

3’ This authorization does not permit disclosure of any in-

formation regarding manufacturing or quality control proc-

esses, or information disclosing the identity of, percentage

quantity of, or testing methodology for deliberately added

inert ingredients, except when necessary to protect against

an unreasonable risk to health or the environment. 7 U.S.C.

136h(d) (1) (A), (B) and (C).

* Congress also expected EPA to provide registrants an op-

portunity, through private written communication, to address

and resolve the agency’s concern about the risk posed by any

pesticide prior to initiating public review. S. Conf. Rep. 95-

1188, 95th Cong., 2d Sess. 35-36 (1978). The purpose was

to “furnish a greater degree of protection for the property

rights of pesticide registrants and ameliorate the indictment-

like characteristics of the [interim review] process” (id.

at 36).

6

der FIFRA that a local road department planned to

spread along a road near his wife’s farm (Pet. App.

2a). Petitioner first placed a telephone eall to EPA

asking that the planned spreading be halted, and less

than one week later he filed this lawsuit (see E.R. 1;

S.E.R. 1-2).° The complaint sought relief not on the

ground that the continued use of these pesticides

failed to meet the criterion of FIFRA that registered

pesticides not cause “unreasonable adverse effects on

the environment,” but on the ground that EPA’s ex-

tensive procedures for the review of the environmen-

tal effects of pesticides did not comply with the re-

quirements of the National Environmental Policy

Act (NEPA), 42 U.S.C. (& Supp. III) 4321 et seq.

(E.R. 7-9).

Several chemical companies holding registrations

for the particular pesticides at issue, and their trade

association, intervened as defendants. The district

court granted summary judgment for the defendants

and dismissed the complaint, holding that the envi-

ronmental review conducted by EPA before issuing

_yegistrations under FIFRA satisfied the objectives of

NEPA, and therefore that EPA had no independent

obligation to comply with the NEPA procedures (Pet.

App. 25a-29a).

8. The court of appeals unanimously affirmed. Its

opinion canvassed the various amendments to FIFRA

in 1972, 1975, 1978, and 1984, which comprehensively

revised the statute and which were all enacted after

the passage of NEPA. The court concluded that in

these complex, highly detailed amendments, Congress

had designed, and then redesigned, a pesticide regis-

5“E R.” refers to the Excerpt of Record petitioner filed in

the court of appeals; “S.E.R.” refers to the Supplemental

Excerpt of Record the government filed in the court of ap-

peals.

7

tration scheme that attempted to reconcile the inter-

ests of the public in expanded environmental protec-

tion and increased information about pesticides, with

the interests of the manufacturers of pesticides in

protecting trade secrets and confidential business in-

formation (Pet. App. 8a-26a). In the court’s view,

the fragile balance Congress achieved only after re-

peated consideration of the appropriate way for EPA

to evaluate and protect against the environmental

risks of pesticide use, allowed no room for the largely

redundant procedures of NEPA, a statute which also

requires federal agencies to take a “ ‘hard look’” at

the environmental consequences of their actions. See

Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976).

The court further observed that the broad public dis-

closure provisions of NEPA stood in stark contrast

to the regime Congress enacted in FIFRA, and con-

cluded that there was no indication that Congress in-

tended the NEPA procedures to upset FIFRA’s deli-

cate balance (Pet. App. 9a-10a, 15a-16a, 21a-22a).

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or of

any other court of appeals. Review by this Court is

therefore not warranted.

1. Petitioner’s principal contention is that the

court of appeals has resolved the question of the po-

tential conflict between NEPA and FIFRA inconsist-

ently with this Court’s decision in Flint Ridge Devel-

opment Co. v. Scenic Rivers Ass’n, 426 U.S. 776

(1976). The Covrt held in Flint Ridge that where a

federal agency’s duty under another statute gives

rise to an “irreconcilable and fundamental conflict”

or a “clear and unavoidable conflict” with obliga-

8

tions NEFA might impose, the agency is excused

from complying with NEPA (426 U.S. at 788). In

order to suggest that the court of appeals applied a

different standard, petitioner places almost exclusive

reliance on the court’s use of the word “incompatible”

(Pet. App. 1la) in place of this Court’s synonymous

formulation.® Petitioner is mistaken.

The judgment in this case stems not from the court

of appeals’ application of a less stringent rule than

required by Flint Ridge, but from the court’s anal-

ysis of the significant limitations prescribed by Con-

gress on the public disclosure of information during

the registration process and on public participation

in that process. FIFRA requires EPA to conduct a

thorough review of the environmental consequences

6In fact, the court of appeals’ use of the term “incom-

patible” (Pet. App. 1la) occurs only in its discussion of one

element of the FIFRA’s statutory scheme—the provision of

the statute, added in 1972, in which Congress directed EPA

to act on registration applications “as expeditiously as pos-

sible.” See 7 U.S.C. 136a(c) (3). The court below reviewed

and relied on significantly more of the history of FIFRA,

including the extensive amendments in 1975 and 1978 and

their legislative history, which showed a clear congressional

intent to design a registration process that balanced the com-

peting interests of the public and the pesticide manufacturers

(Pet. App. 8a-18a). The court’s conclusion that application

of NEPA is incompatible with Congress’s direction to expedite

the registration process is plainly correct. EPA processes up

to 16,000 applications every year (S.E.R. 28), and while not all

of them would require a complete environmental impact state-

ment, the NEPA procedures that petitioner seeks to impose

would severely impair EPA’s ability to administer the pesti-

cide registration program. As the court of appeals recognized

(Pet. App. 13a-16a), it was precisely Congress’s purpose, in

amending and revising this statute on several occasions, to

break the gridlock that had paralyzed the registration system.

9

of registration, but petitioner consistently ignores

that Congress, in its various revisions of the regis-

tration process, also restricts EPA’s ability to con-

duct that environmental review on a public basis.

The court of appeals determined, after a comprehen-

Sive review of the statutory scheme, that application

of the NEPA procedures “would sabotage the deli-

cate machinery that Congress designed to register

new pesticides” (Pet. App. 15a-16a). That conclu-

sion is unassailable.

Petitioner maintains (Pet. 15) that application of

NEPA would “require EPA to disclose more fully the

impacts of such registration,” yet petitioner concedes

(Pet. 8) that “[{i]f FIFRA prohibited the type of

public participation that NEPA requires there would

be a conflict.” Petitioner errs in asserting (Pet. 8)

that there is no such conflict.

FIFRA itself places significant limitations on

EPA’s ability to provide for public participation in

the registration decision and to disclose information

prior to the grant of a registration. Contrary to

petitioner’s argument (Pet. 10 n.10), Section 10(d)

of FIFRA does not require disclosure of information

about environmental impacts prior to registration;

that Section applies only to “a registered or previ-

ously registered pesticide * * *” (7 U.S.C. (& Supp.

IIT) 136h(d) (emphasis supplied) ). Other provisions

of the statute prevent any significant disclosure or

opportunity for public participation in the initial

registration decision (e.g., 7 U.S.C. 136a(c) (8) (im-

position of evidentiary threshold prior to public re-

view of registration or registration application) ); 7

U.S.C. 136h(b) (EPA must honor legitimate claims

of trade secrets and confidential business informa-

tion) ; 7 U.S.C. 186h(g) (bar on the disclosure of any

10

information submitted by applicants to foreign and

multinational pesticide producers, whether directly

or indirectly by general publication) ).

FIFRA’s legislative history confirms that Congress

did not intend to permit disclosure of data prior to

registration. In 1972, the Senate bill amending

FIFRA would have permitted the release of toxicolog-

ical data prior to registration. 118 Cong. Rec. 32258.

See S. Rep. 92-970, 92d Cong., 2d Sess. 3, 20 (1972) ;

S. Rep. 92-838, 92d Cong., 2d Sess. Pt. 2, at 70

(1972). In conference, however, the Senate receded,

and the “liberal[ized]” disclosure provisions were

eliminated from the bill. H.R. Conf. Rep. 92-1540,

92d Cong., 2d Sess. 34 (1972). A deletion of a pro-

vision in conference “strongly militates against a

judgment that Congress intended a result that it ex-

pressly declined to enact.” Gulfport Oil Corp. v. Copp

Paving Co., 419 U.S. 186, 200 (1974).

The statutory limitations on public disclosure and

participation, amplified by the legislative history,

demonstrate that a clear conflict exists between the

requirements of FIFRA and those of NEPA. The

court of appeals expressly found such an inconsist-

ency (Pet. App. 9a, 12a, 15a, 24a, 29a), concluding

that the amendments to FIFRA in 1972, 1975, and

1978, represent Congress’s repeated attempts to fine-

tune the “careful balance between ‘the legitimate

right of the public to know the basis for agency de-

cisions and the right of a business to see that the

manufacturing process and other trade secret infor-

mation controlled by the Act are not disclosed for

the commercial advantage of competing business in-

terests’” (id. at 15a, quoting H.R. Rep. 95-663,

95th Cong., lst Sess. 18-19 (1977)). Simply put,

EPA cannot, consistent with its obligations under

11

FIFRA, grant the kind of public participation in the

consideration of applications for registration that pe-

titioner demands. In analogous circumstances, this

Court has held that NEPA cannot be construed to

require an agency to abandon its particular statutory

obligations. Flint Ridge, 426 U.S. at 788. See Wein-

berger v. Catholic Action/Peace Education Project,

454 U.S. 139, 145-146 (1981); United States v.

SCRAP, 412 U.S. 669, 694 (1973) (“NEPA was

not intended to repeal by implication any other stat-

ute”) .7

2. Petitioner’s remaining points are simply varia-

tions on the same theme. Contrary to petitioner’s

argument (Pet. 10-15), the court did not refuse to

adhere to this Court’s precedents disfavoring im-

plied repeals and exhorting courts to harmonize, if

possible, apparently conflicting statutes. See Watt v.

7 Petitioner places great reliance (Pet. 5-6, 9-10) on the

court of appeals’ observation (Pet. App. 3la n.1) that the

application of the provisions of the Freedom of Information

Act (FOIA), 5 U.S.C. (& Supp. III) 552, which govern public

disclosure under NEPA, might result in limitations on public

disclosure that are identical or similar to those that result

directly from FIFRA. See Weinberger v. Catholic Action, 454

U.S. at 145. On this observation petitioner premises his re-

peated assertion that the court found that EPA can comply

with all the procedural requirements of both FIFRA and

NEPA. Petitioner is incorrect. The court of appeals merely

stated that it was unnecessary to determine the limits FOIA

might place on disclosure. Whether the limitations on public

disclosure and public participation in the registration process

result from the application of FOIA or FIFRA, or some com-

bination of the two, the fact remains that Congress in FIFRA

deliberately precluded the kind of public disclosure and par-

ticipation that petitioner seeks. That conclusion is dispositive

of petitioner’s claim.

12

Alaska, 451 U.S. 259, 267 (1981); TVA v. Hill, 487

U.S. 158, 189 (1978); Morton v. Mancari, 417 U.S.

535, 550 (1974). The basic interpretative stand-

ard used in these cases, irreconcilability, is the same

one this Court has prescribed as the test for deter-

mining whether an agency’s duties under one statute

excuse it from complying with the procedures re-

quired under NEPA, which was the precise issue

presented to the court below. See Flint Ridge, 426

U.S. at 788. In either situation, the question can be

resolved only by a careful analysis of the two statutes

and their requirements. As we have shown, the court

below performed that analysis and concluded that the

duties and responsibilities Congress assigned to EPA

under FIFRA excused the agency from any duty to

comply with NEPA when reviewing applications for

pesticide registrations. Having reached that conclu-

sion, the court had no need to do anything else since

Flint Ridge and its progeny were the appropriate

cases to apply. See also Brown v. General Services

Administration, 425 U.S. 820, 834-835 (1976), and

cases there cited. In any event, the result would not

be different under the authorities upon which peti-

tioner relies, since in practical terms the inquiry

would be the same.

3. Finally, there is no basis for petitioner’s con-

cern (Pet. 4-5) that a major federal program has

escaped the environmental review required by NEPA.

On the contrary, as the court of appeals perceived

(Pet. App. 9a, 21a-22a), FIFRA itself requires EPA

to examine the environmental effects of pesticide reg-

istration. Thus, review under FIFRA satisfies the

primary objective of NEPA: that agencies consider

the environmental consequences of their decisions.

See Weinberger v. Catholic Action, 454 U.S. at 143.

lr a a rn

13

Indeed, it is on this very basis that many courts

have exempted EPA, whose mission is to protect the

environment, from the requirement to prepare an

environmental impact statement when making deci-

sions under the various statutes EPA administers,

including FIFRA. Weyerhaeuser Co. v. Costle, 590

F.2d 1011, 1051 (D.C. Cir. 1978) (Clean Water

Act); Wyoming v. Hathaway, 525 F.2d 66, 71-72

(10th Cir. 1975), cert. denied, 426 U.S. 906 (1976)

(FIFRA) ; Amoco Oil Co. v. EPA, 501 F.2d 722, 749-

750 (D.C. Cir. 1974) (Clean Air Act); EDF, Ine. v.

EPA, 489 F.2d 1247, 1256-1257 (D.C. Cir. 19738)

(FIFRA); Portland Cement Ass’n v. Ruckelshaus,

486 F.2d 375, 379-387 (D.C. Cir. 1973), cert. denied,

417 U.S. 921 (1974) (Clean Air Act); Anaconda

Co. v. Ruckelshaus, 482 F.2d 1301, 1306 (10th Cir.

1973) (Clean Air Act); Warren County v. State of

North Carolina, 528 F. Supp. 276, 286-287 (E.D.N.C.

1981) (Toxic Substances Control Act); EDF, Ince. v.

Blum, 458 F. Supp. 650, 661-662 (D.D.C. 1978)

(FIFRA) ; Maryland v. Train, 415 F. Supp. 116, 121

(D. Md. 1976) (Ocean Dumping Act).® Similarly,

there is no need to require EPA to comply with

NEPA in order to assure that the agency takes the

required “hard look” at the environmental impacts

of pesticide registration. See Kleppe v. Sierra Club,

427 U.S. at 410.°

8 Although the court of appeals did not base its decision on

the functional equivalency doctrine applied in these cases, the

court did not reject that doctrine, contrary to petitioner’s

assertion (Pet. 6). As the court noted (Pet. App. 21a), the

legislative history indicates that Congress recognized that

requiring an EIS would be redundant in light of EPA’s

mission. See S. Rep. 94-452, 94th Cong., lst Sess. 9 (1975).

® Nor will this decision encourage other agencies to claim

unwarranted exemption from NEPA simply because they

14

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

ROGER J. MARZULLA

Acting Assistant Attorney General

PETER R. STEENLAND, JR.

JOHN A. BRYSON

Attorneys

AUGUST 1987

have a statutory obligation other than NEPA to consider the

environmental effects of their decisions. The result here turns

on the analysis of a particular statute and its legislative his-

tory and offers no incentive to other agencies implementing

different statutory schemes. See, e.g., our currently pending

brief in opposition in Monongahela Power Co. Vv. Marsh, No.

86-1642. (We are furnishing counsel for petitioner with a copy

of that brief).

* U. S. GOVERNMENT PRINTING OFFICE; 1967 181483 40487