ELR Citation: ELR 20521
No(s). 83-2336 (D.C. Cir. May 2, 1986)

The court holds that the court of appeals has original jurisdiction in a challenge to the Environmental Protection Agency's (EPA's) award of two experimental use permits for Compound 1080 under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), expiration of the permits does not moot the case, and EPA's issuance of the permits was within its statutory authority. The court first holds that it has original jurisdiction to review the case. The judicial review provision of FIFRA provides for review in the district court unless there is controversy as to the validity of an EPA order following a public hearing. Noting that there is no conflict between the parties regarding the existence of a controversy or an order, the court rules that there has been a public hearing within the meaning of the Act. Although there was no formal public hearing, the record is substantial and satisfies Congress' concerns for an adequate basis of review. Notices of the applications for the permits were published in the Federal Register, interested parties were invited to submit comments, and EPA gathered extensive testimony. The court next holds that the expiration of the permits does not moot the case. The permits were each granted for one year, too short a time for most litigation to conclude. Even under expedited procedures, a similar permit in the future could evade the court's review. Petitioners attempted to be timely, as they filed suit six weeks after the permits were granted. Secondly, the issue in controversy, EPA's award of experimental use permits for Compound 1080 to the Fish and Wildlife Service and the University of California at Davis, is likely to reoccur. The pattern of applications, renewals, and challenges in this and related litigation indicates the vitality of the controversy. Reaching the merits, the court holds that the issuance of the permits was valid. The court rules that both applicants meet the requirements of §5(g), which allows experimental use permits for agricultural research agencies or educational institutions to be granted under more lenient standards than §5(a)-(e). Although the orders granting the permits did not specify which subsection EPA was relying on, the court finds it necessary to decide whether the general permit requirements were met since it decided that the two applicants come within the exceptions provided for in §5(g). The court also rules that the uses of Compound 1080 authorized by the permits fall within the meaning of experimentation, rejecting petitioner's argument that the term should be narrowly construed to include essentially laboratory experiments only.

Counsel for Petitioner
Theodore L. Garrett
Covington & Burling
1201 Pennsylvania Ave. NW, Washington DC 20006
(202) 662-6000

Counsel for Respondents
Lee R. Tyner
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2992

William L. Jordan
Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 475-8040

Before ROBINSON, Chief Judge, and WALD and BUCKLEY, Circuit Judges.