BAZELON, Chief Judge:
This case requires the court to consider under what circumstances there may be a judicial remedy for the failure of an administrative agency to act promptly, and what form that remedy may take.
The shipment of pesticides in interstate commerce is regulated by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which is administered by the Secretary of the Department of Agriculture.
The statute establishes an elaborate procedure by which a registration may be cancelled, that begins when the Secretary issues a notice of cancellation to a registrant.
Petitioners here are five organizations engaged in activities relating to environmental protection.
The Secretary moved to dismiss for lack of jurisdiction, asserting that petitioners lack standing to complain of his failure to act, that there is no final order ripe for review, that any final order would nevertheless be unreviewable because it involves questions committed by law to agency discretion, and that any available relief can be afforded only by the district court on a writ of mandamus, and not by the court of appeals. Since we can accept none of those conclusions, the motion to dismiss must be denied, and the case remanded to the Secretary to provide this court with the record necessary for meaningful appellate review.
The legislative history of the FIFRA refutes respondents' contention that only registrants and applicants for registration have standing to challenge the Secretary's determinations under the Act. The statute affords a right of review to "any person who will be adversely affected" by an order.
The injury alleged by petitioners is the biological harm to man and to other living things resulting from the Secretary's failure to take action which would restrict the use of DDT in the environment. Numerous scientific studies and several reports to government agencies
Consumers of regulated products and services have standing to protect the public interest in the proper administration of a regulatory system enacted for their benefit.
On the basis of petitioners' uncontroverted allegations, it appears that they are organizations with a demonstrated interest in protecting the environment from pesticide pollution. Therefore they have the necessary stake in the outcome of a challenge to the Secretary's inaction to contest the issues with the adverseness required by Article III of the Constitution.
Related to the question of standing is respondents' argument that the decision to suspend the registration of a pesticide as an "imminent hazard" is committed by statute to unreviewable administrative discretion.
The main thrust of respondents' argument is that the Secretary has issued no final order reviewable in this court.
An order expressly denying the request for suspension or for cancellation would clearly be ripe for review.
Respondents suggest that the district court is the proper forum for any review that may be available, characterizing the petition as one for relief in the nature of mandamus. We find it unnecessary to decide whether petitioners could have obtained relief from the district court, since the availability of that extraordinary remedy for the failure of an officer to perform his statutory duty need not bar statutory appellate review of the failure to act, when exigent circumstances render it equivalent to a final denial of petitioners' request.
It remains for us to determine whether, in the circumstances of this case, administrative inaction is the equivalent of an order denying relief. Clearly relief delayed is not always equivalent to relief denied. There are many factors that result in delay, and a court is in general ill-suited to review the order in which an agency conducts its business.
A. With regard to the request for interim suspension of the registration of DDT, we agree that inaction is tantamount to an order denying suspension. The suspension power is designed to protect the public from an "imminent hazard"; if petitioners are right in their claim that DDT presents a hazard sufficient to warrant suspension, then even a temporary refusal to suspend results in irreparable injury on a massive scale. The controversy over interim relief is ripe for judicial resolution, because the Secretary's inaction results in a final disposition of such rights as the petitioners and the public may have to interim relief.
Nevertheless, meaningful appellate review of the refusal to suspend DDT's registration is impossible in the absence of any record of administrative action. The suspension decision is committed by statute to the Secretary; the role of the court is merely to ensure that
B. With respect to the request for notices of cancellation, we are more reluctant to equate a tentative and equivocal delay with an outright denial of the request. The Secretary has made a few feeble gestures in the direction of compliance with the request, and further action is apparently under consideration. But the statutory scheme of the FIFRA itself contemplates a lengthy inquiry into the conditions for the safe use of an economic poison before its registration may finally be cancelled. Since the issuance of cancellation notices merely triggers that administrative mechanism, it is questionable whether the Secretary may properly defer the decision to issue notices in order to engage in a preliminary inquiry not contemplated by the statute.
At some point administrative delay amounts to a refusal to act, with sufficient finality and ripeness to permit judicial review. The present record does not permit us to determine whether that point has been reached here. On remand, the Secretary should either decide on the record whether to issue the remaining requested cancellation notices, or explain the reasons for deferring the decision still further. In light of that record, and in view of his disposition of the request for interim relief, the court will be in a better position to evaluate the impact of any further delay and decide whether judicial relief is appropriate.
Remanded for further proceedings in accordance with this opinion.