26 hazard' to the public. Such action has been taken only once; but a product containing an identical ingredient was allowed to remain on the market without even bearing a required warning notice on its label." (House Report, p. 16.) If the Respondents cannot be made to carry out their duty under FIFRA in a case as blatant as this, the suspension provision will certainly continue in disuse. And, what is worse, the public will have to suffer the havoc of many more millions of pounds of DDT waiting for Agriculture to act. III PETITIONERS HAVE STANDING TO OBTAIN REVIEW Generally speaking, those persons whose interests a statute is designed to protect have standing under that statute to protect those interests. Hardin v. Kentucky Utilities Co., 370 U.S. 1 (1968); Curran v. Laird, App. D.C. F.2d (No. 21,040 D.C. Cir., Nov. 12, 1969 (en banc)). When the interest a statute protects is one which is not easily identifiable with any particular group, the courts have granted standing on behalf of the public to those persons who by their activities and conduct exhibit a special interest in the area protected by the statute in question. The two leading decisions on this point are Office of Communication of the United Church of Christ v. Federal Communications Commission, 123 App. D.C. 328, 359 F.2d 994 (1966), and Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (2d Cir. 1965).35 35 Also see Nashville I-40 Steering Committee v. Ellington, 387 F.2d 179, 182 (6th Cir. 1967); Norwalk Core v. Norwalk Redevelopment Agency, 395 F.2d 920 (2nd Cir. 1968); Road Review League, Town of Bedford v. Boyd, 270 F. Supp. 650, 660-61 (S.D.N.Y. 1967); Citizens Committee for the Hudson Valley v. Volpe, 302 F. Supp. 1083 (S.D.N.Y. 1969); Powelton Civic Home Owners Ass'n v. Department 27 FIFRA is designed to protect the public from pesticide hazards, and, in fact, Congress intended that public groups concerned with those hazards would participate in FIFRA proceedings. Petitioners have shown the special interest in environmental protection to make their participation proper on behalf of the public. A. FIFRA Contemplates Public FIFRA was originally passed to protect the public from harmful pesticides.36 Section 4d was added to FIFRA by the 1964 amendments,37 the purpose of which was to better protect the public from pesticide hazards by closing the protest registration loophole and by tightening generally administrative procedures. (see pp. 15-17, supra). 38 The House Agriculture Committee Report stated: of Housing and Urban Development, 284 F. Supp. 809, 821-828 (E. D. Penn. 1968); Parker v. United States, 1368, D.C. Colo., Dec. 24, 1969); Sierra Club v. Hickel, F. Supp. (No. CF. Supp. (No. 51464, N.D. Calif., July 23, 1969). Three District Courts have upheld the standing of the Sierra Club in environmental suits, including two involving Agriculture. Parker v. United States, supra+; Sierra Club v. Hickel, supra+, and Citizens Committee v. Volpe, supra. (+Copies submitted to Court with Opposition to Motion to Dismiss). Scholarly comment on this subject approves the position taken in these cases. See Berger, Standing to Sue in Public Actions: Is it a Constitutional Requirement, 78 Yale L.J. 816 (1969); Rogers, The Need for Memingful Control in the Management of Federally Owned Timberlands, 4 Land & Water L. Rev. 121 (1969); Allen, The Congressional Intent to Protect Test: A Judicial Lowering of the Standing Barrier, 41 Colo. L. Rev. 96 (1969); Jaffee, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. Pa. L. Rev. 1033 (1968); Reich, The Law of the Planned Society, 75 Yale L.J. 1227 (1966). 36 37 House Report No. 313, 80th Cong., 1st Sess. (1947). 7Act of May 12, 1964, 78 Stat. 190. 38 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., 28 “The bill will...afford protection to the public by repealing the authority for registration under protest."39 Repealing the protest registration provision had the effect of requiring: “...industry rather than the Federal Government to shoulder the burden of proof in connection with the marketing of pesticides which may be unsafe for use as intended."40 The fact that FIFRA and its 1964 amendments were designed to protect the public is sufficient to confer standing on those who have a special interest in environmental pollution and health. The language of Section 4d of FIFRA1 and its legislative history specifically confirm this result. Section 4d of FIFRA provides judicial review for “any person who will be adversely affected."42 An attempt by the National Agricultural Chemical Association to substitute the language, "the applicant for registration, or registrant,' for the term "any person...adversely affected," was rejected. See p. 49, Hearings, Regulation of Economic Poisons, August 21 and 22, 1963, Subcommittee on Departmental Oversight and Consumer Relations of the Committee on Agriculture.43 2d Sess. (1964); 110 Cong. Rec. 7189, 88th Cong., 2d Sess. (1964); 109 Cong. Rec. 20079, 88th Cong., 1st Sess. (1963). 39 House Report No. 1125 (on H.R. 9739), 88th Cong., 2d Sess., 64 U.S. Code, Cong. & Ad. News 2167. 40 Leonor K. Sullivan, 110 Cong. Rec. 7189, 88th Cong., 2d Sess. (1964). 417 U.S.C. § 135b(d). 42 (Emphasis added) In addition, the Administrative Procedure Act, 5 U.S.C. § 702, provides review for anyone "adversely affected or aggrieved by agency action under the meaning of a relevant statute." 4388th Cong., 1st Sess., Aug. 21-22, 1963. 29 The colloquy which occurred when the amendment was offered shows conclusively that Congress intended that the proper representatives of the public were intended to have standing: Parke C. Brinkley (President of the National Agricultural Chemical Association): "It refers to the appeal and lets anybody who wants to do it, whereas this amendment would confine it to the person whose company is actually involved. Congressman Hagen: "Your amendment excludes The American Medical Association, for example, from requesting public hearings? Robert L. Ackerly (counsel with Mr. Brinkley): "Yes; that is true. Hagen: "It is merely a matter between the Department and the Company? Ackerly: "That is correct. . . . Hagen: "But the public, in effect, would be excluded from participating? Ackerly: "The public would be excluded from participating in this procedure; that is correct. Congressman Harvey: "I think it is generally com- "It would seem to me...if such a condition is set 30 In addition to the legislative history, the language in FIFRA, which provides jurisdiction for "any person... adversely affected," is very close to the language involved in United Church of Christ and Scenic Hudson Preservation Conference.44 In those two cases, the Court held that this language conferred standing on organizations representing the public. Petitioners believe this Court's statement on standing in United Church of Christ is in fact even more suitable to this case: "The theory that the Commission can always effectively represent the listener interests in a renewal proceeding without the aid and participation of legitimate listener representatives fulfilling the role of private attorneys general is one of those assumptions we collectively try to work with so long as they are reasonably adequate. When it becomes. clear, as it does to us now, that it is no longer a valid assumption which stands up under the realities of actual experience, neither we nor the Commission can continue to rely on it. The gradual expansion and evaluation of concepts of standing in administrative law attests that experience rather than logic or fixed rules has been accepted as the guide. 359 F.2d at 1003-1004. B. The Petitioners Have Exhibited the Requisite Interest in DDT The Petitioners have, by their activity and conduct, exhibited the proper interest in the problems involved in this case to represent the public. The Petitioners are four national organizations and one local organization with active programs in the areas of environmental protection and wildlife conservation. Together, Petitioners represent, among their members alone, two hundred thousand concerned citizens. They have shown a strong interest in pesticide problems in general and DDT problems in particular. They have taken various legal and administrative actions dealing 44 Also see the cases and authorities cited in note 35, p. 26, supra. |