ELR Citation: ELR 20499
No(s). 82-504-RE (D. Or. Apr 26, 1985)

The court holds that the Department of Agriculture's environmental impact statement (EIS) on the use of pesticidesto eradicate gypsy moths is inadequate because its worst-case analysis is so hypertechnical that it violates the Council on Environmental Quality (CEQ) regulation on EIS clarity. The court first notes that its inquiry is limited to whether the EIS contains a reasonably thorough discussion of environmental consequences. It next rules that the filing of the EIS was a final agency action subject to judicial review; plaintiffs did not need to wait until after the close of the public comment period to bring suit. Turning to plaintiffs' 10 substantive claims, the court holds as follows: (1) Even though there was no worst case analysis in the draft EIS, plaintiffs had an adequate opportunity to comment on the worst case analysis during the comment periods on the final programmatic EIS and its supplement. (2) The EIS adequately discloses and discusses the cancer risks associated with diflubenzuron by discussing the cancer risks of one of its metabolites. (3) The record supports defendants' choice of safety to account for possible impacts to sensitive individuals. (4) The EIS adequately dealt with the uncertainty concerning synergistic effects by simply disclosing it, and adequately considered the effects of cumulative exposures. (5) Defendants were reasonable in their estimates of absorbtion and persistence of the pesticides on vegetables. The agency's disregard for studies contrary to its conclusions was within its discretion. (6) Defendants' use of animal test data, with a 100-fold safety factor added, to estimate the level at which human health effects would be observed was reasonable. (7) Defendants acted reasonably in choosing to perform a worst case analysis rather than engaging in research to fill data gaps on the health effects of the pesticides. (8) Defendants fairly put alternatives to chemical spraying before the decisionmakers and fairly discussed controversial health issues. (9) Defendants did not need to publish an estimate of total cancers from the program. It is sufficient that the EIS provides the formulas necessary to estimate total cancers from a given application. (10) Although the body of the EIS meets the CEQ 40 C.F.R. §1502.8 standard for clarity, the worst-case analysis is so complex, deciphering its challenges even the experts. Based on this last holding, the court enjoins the use of the four pesticides treated in the worst-case analysis, but delays the injunction's nationwide effect until after the spray season, finding that an immediate injunction would cause more harm than it might prevent.

[Related opinions appear at 12 ELR 20766, 20769, 20769; 13 ELR 20901; 14 ELR 20762; and 15 ELR 20503.]

Counsel for Plaintiffs
Larry N. Sokol
Jolles, Sokol & Bernstein
721 SW Oak St., Portland OR 97205
(503) 228-6474

John E. Bonine, Michael D. Axline
Pacific Northwest Resources Clinic
University of Oregon Law Center, Eugene OR 97403
(503) 686-3858

Ralph Bradley
Bradley and Gordon
1397 Willamette St., Eugene OR 97401
(503) 343-8247

Counsel for Defendants
Charles H. Turner, U.S. Attorney; Thomas C. Lee, Ass't U.S. Attorney
312 U.S. Courthouse, 620 SW Main St., Portland OR 97205
(503) 221-2766

Dorothy R. Burakreis, R.W. Rodrigues, Elizabeth Ann Peterson
Land and Natural Resources Division
Department of Justice, 10th & Pennsylvania Ave., NW, Washington DC 20530
(202) 633-5390

John DiLorenzo Jr., Brendan Stocklin-Enright
DiLorenzo & Dietz
900 SW Fifth, #1700, Portland OR 97204
(503) 225-0010