6 on the part of governmental agencies. Facts regarding DDT on all essential points in this cause are dealt with in the Mrak Report. Petitioners will therefore cite specifically the Mrak Report where relevant. DDT is a pesticide widely used for pest control in a variety of agricultural and non-agricultural situations. It is often used against insects and other pests in connection with tobacco, cotton, shade trees, forest trees, fruit trees, vegetables, and animals. In many cases, the use of DDT is not related to protecting human health or producing food. One of the most important characteristics of DDT is its persistence in the environment. (App. 28, Mrak 103-104) Unlike many other pesticides, DDT is not broken down to non-toxic compounds by biological processes. DDT is causing serious, permanent and irreparable harm to man, wildlife resources and to the earth's ecosystem and environment. The harm is of a widespread and immediate nature. (See generally App. 12-16, 28-31, Mrak 206-212) DDT and its residues have characteristics (App. 12-13, 28, Mrak 187) that cause it, when released into the environment, to accumulate in the tissue of non-target organisms (including man) (App. 12-13, 28, Mrak 187, 321-344) and concentrate in food chains. (App. 13, 28, Mrak 187) DDT has been in common use since World War II. (Mrak 45-46) Today more than 100 million pounds of DDT is manufactured and released into the environment each year. (App. 28, Mrak 48) As a result, the entire biosphere has become contaminated with DDT residues. (See generally Mrak 99-176)5 DDT and DDT residues are contaminants of human foods, including many foods never treated with DDT (App. 13, 29, Mrak 136-140), and contaminate the tissues of virtually all human beings. (App. 13, 28, Mrak 321-341) DDT has been proven a cancer-causing agent in test animals in a definitive study supported by the National Cancer 5 DDT contaminates such diverse elements in the environment as air, rainwater, sea birds, antarctic animals, cosmetics and human milk. (App. 13, 29, Mrak 114, 116, 213) 7 Institute (App. 15-16, Mrak 470-472, 481-483) confirming earlier evidence. (App. 16, 30-31) The Mrak Report noted: ". . . a remarkable degree of concurrence has been found to exist between chemical carcinogenesis in animals and that in man where it has been studied closely." (Mrak 482) Another study found human victims of terminal cancer to contain more than twice the concentration of DDT residues in their fat than did victims of accidental death. (App. 16, 30-31, Mrak 495) DDT is also endangering the reproduction and survival of many non-target organisms. (Mrak 179, 189, 206-212) For example, DDT and DDT residues are a major hazard to bird populations, causing direct death, reproductive failure and, in some species, catastrophic declines approaching extinction. (App. 13-14, 29, Mrak 179, 189, 211-212) DDT likewise is causing direct kills and reproductive failures of fish, threatening important freshwater and marine fisheries. (App. 14, 29, Mrak 209-210) DDT and DDT residues are also causing great damage to useful invertebrates of many species (App. 14-15, 30, Mrak 206-209) and are causing a variety of other ecological and environmental damage. (App. 15, 30, Mrak 189, 206-209) The tragedy of DDT is compounded by the fact that alternative pest control techniques, particularly integrated techniques, are available for all DDT uses, which would not pose the same threats to the environment and to human health as DDT. (App. 16, Mrak 161-168) Order of Respondents. On December 11, 1969, Respondents denied Petitioners' request for immediate suspension and substantially denied Petitioners' request to commence cancellation procedures under Section 4c of FIFRA. (App. 34-45) Respondents took the following actions: Respondents' order consisted of a letter to Petitioners (App. 3435) that incorporated by reference two notices: (1) Pesticide Registration Notice 69-17, dated November 20, 1969, initiating procedures to cancel registrations for the sale of DDT for four uses. (App. 40-42) 8 1. Denied Petitioners' request for immediate suspension of all uses of DDT; 2. Denied Petitioners' request for issuance of Section 4c notices for all economic poisons containing DDT. The Respondents issued a Section 4c notice for four uses of DDT: tobacco, shade trees, household uses, and, with exceptions, aquatic uses. Respondents did not disturb approximately 100 other uses of DDT; 3. Solicited comments concerning the approximately 100 other uses of DDT. Respondents' determination of December 11, 1969, (App. 34-43) embodies their decision, states their findings and their reasons, and recites the evidence upon which their action was taken. The Mrak Report and the other government reports mentioned above (pp. 5-6) were explicitly relied on. (App. 35, 40-41, 43) Respondents found that the discontinuation of widespread use of DDT was warranted. (App. 41, 43-44) The notices referred to the extensive use of DDT, its persistence and the resulting environmental contamination. (App. 40, 43) It was specifically stated that the Respondents were taking action "to assure greater protection of the environment." (App. 35) The Respondents stated that their determination of December 11, 1969, together with the related action referred to therein, constituted their response to Petitioners' request. (App. 35) The determination denied the relief sought by Petitioners (except in small part for four uses of DDT). Section 4c notices were not issued for most uses of DDT and no product containing DDT or any use of DDT has been suspended. This is a Section 4c notice for these four uses which initiates the FIFRA cancellation procedure and is of the type Petitioners sought for all economic poisons containing DDT. Thus, the issuance of this Section 4c notice granted partial relief to Petitioners. (2) Notice published in the Federal Register on November 25, 1969 (34 F.R. 18827) inviting views and comments for a period of 90 days in regard to other uses of DDT. (App. 43-45) 9 Proceeding in this Court. Petitioners sought review in this Court on December 29, 1969, asking the following relief: (a) That the order of December 11, 1969, in response to the Petition of October 31, 1969, be set aside; (b) that the Respondents be ordered to follow statutory procedures, issuing § 4c notices to commence the procedures by which the registrations of all economic poisons that contain DDT could be cancelled; and (c) that the Respondents be ordered to immediately suspend the registration of all economic poisons that contain DDT during § 4c proceedings. Because of the urgency of Petitioners' cause, Petitioners moved, on December 29, 1969, that the matter be advanced on the docket and expedited. Respondents moved on January 12, 1970, to dismiss for lack of jurisdiction. Petitioners filed their Opposition thereto on January 22, 1970. On January 29, 1970, this Court, noting "the urgency of petitioners' complaint and the importance of the public safety considerations which it raises," granted Petitioners' Motion to Expedite and ordered that the jurisdictional questions raised by Respondents be deferred for consideration with the merits. On February 2, 1970, Respondents moved for reconsideration of the Court's January 29 order and announced to the Court that they would not need the period allotted to file a brief and would rest completely on their Motion to Dismiss. (Motion to Reconsider, p. 6) Respondents urged the Court, should it deny the Motion to Reconsider, to set the cause down for oral argument as soon as possible following the filing of Petitioners' brief. 10 ARGUMENT I. RESPONDENTS HAVE ERRED IN DENYING PETI- The Respondents denied Petitioners' request that they issue Section 4c notices for all economic poisons containing DDT. Respondents, however, are required by FIFRA to issue such notices at this time because (a) they have made a finding that widespread DDT use should be discontinued, and (b) because the evidence before them compels a finding that DDT use should be discontinued. A. The Respondents Must Issue Section 4c Notices Because They Have Made a Finding That Widespread DDT Use Should Be Discontinued FIFRA was passed in 1947 to protect the public from harmful or ineffective pesticides and other economic poisons, i.e., substances intended for pest or weed control.7 The Act was amended in 1964 to better protect the public by closing loopholes which had permitted manufacturers to market unsafe products. The amendment gave Agriculture effective means of refusing, cancelling, and suspending registrations. Specifically, FIFRA sets out standards and procedures with regard to pesticides to "protect the public"" 7FIFRA § 2a; 7 U.S.C. § 135(a), 61 Stat. 163 (1947); House Report No. 313, 80th Cong., 1st Sess. (1947); 109 Cong. Rec. 20079 (Statement of Senator Ellender), 88th Cong., 1st Sess. (1963). See, e.g., Senate Report No. 573 (on S. 1605), 88th Cong., 1st Sess. (1963); House Report No. 1125 (on H.R. 9739), 88th Cong., 2d Sess. (1964); 110 Cong. Rec. 2948-49, 88th Cong., 2d Sess. (1964); 110 Cong. Rec. 7189, 88th Cong., 2nd Sess. (1964); 109 Cong. Rec. 20079, 88th Cong., 1st Sess. (1963). "FIFRA § 2(z)(2), 7 U.S.C. § 135(z) (2) (c), 61 Stat. 166, as amended by 73 Stat. 287. |