ELR Citation: ELR 21266
No(s). 86-1130 (D.D.C. Jan 11, 1988)

The court holds that plaintiffs lack standing to challenge the issuance of a marketing license for a pseudorabies vaccine containing genetically altered material under the Virus-Serum-Toxin Act (VSTA) and the Administrative Procedure Act (APA), and the United States Department of Agriculture Animal and Plant Health Inspection Service's (USDA-APHIS') decision not to prepare an environmental impact statement was not arbitrary and capricious. The court holds that plaintiffs lack standing to raise their VSTA and APA §702 claims because they failed to show either a specific injury caused by the introduction of the genetically altered virus vaccine or a sufficient likelihood of a particularized injury to a specific resource they use and enjoy. However, the court holds that plaintiff Foundation on Economic Trends (FET) does have standing based on its claims that USDA-APHIS' noncompliance with the National Environmental Policy Act (NEPA) hindered FET's efforts to provide information to the public. The court holds that the finding of no significant impact in APHIS's environmental assessment was not arbitrary and capricious. The court holds that USDA-APHIS was not required to consult with other agencies, internal advisory committees, and the public. The APHIS NEPA guidelines only require public involvement upon a finding of significant impact, and the USDA regulations leave to the agency's discretion when to seek more public participation. The court then holds that the USDA-APHIS' decision to rely on data that was collected by a researcher who failed to comply with reporting and notification requirements does not make the agency's reliance on that information arbitrary and capricious. In addition, the court holds that deficiencies in the vaccine's testing do not make the environmental assessment's finding of no significant impact arbitrary and capricious, but merely reflects the evolution of genetic engineering.

Counsel for Plaintiffs
Edward Lee Rogers
1718 P St. NW
Washington DC 20036
(202) 387-1600

Counsel for Defendants
Pauline H. Milius
Land and Natural Resources Division
Department of Justice
Washington DC 20530
(202) 633-3797