SKOPIL, District Judge:
The plaintiffs in this action seek declaratory and injunctive relief prohibiting the use of phenoxy herbicides by the United States Forest Service (Forest Service) in the Siuslaw National Forest. After abandoning other claims asserted earlier in this proceeding,
The NEPA claim primarily attacks the adequacy of the Environmental Impact Statement (EIS) prepared by the Forest Service on its vegetation management program in the Siuslaw National Forest. Specifically, the plaintiffs contend that the discussion of the environmental effects of phenoxy herbicides and the consideration of alternatives to their use do not satisfy the requirements of 42 U.S.C. §§ 4332(2)(C) and (H).
The claim under the Eagles Act is based on the theory that the use of phenoxy herbicides where eagles feed and nest tends to molest or disturb them and thus constitutes a prohibited "taking" of these birds.
PROCEDURAL STATUS OF THE CASE
Plaintiffs' motion for a temporary restraining order was denied on May 21, 1976. Before trial, the Industrial Forestry Association (IFA) was permitted to intervene as a party defendant. The trial on the merits, which was combined with a hearing on plaintiffs' motion for a preliminary injunction, took place in two segments during
Most of the testimony was submitted in the form of written witness statements,
A ruling has been reserved on defendants' motion for summary judgment (which is treated as directed at the amended complaint). This motion is now denied. A number of genuine issues of material fact exist.
Ruling has also been reserved (Tr. 235) on plaintiffs' objections to Defendants' Exhibits A, C, and P, as expressed in Mr. Anderson's letter of June 29, 1976. Defendants elected not to respond to those objections and did not attempt to authenticate these exhibits or establish their relevancy or materiality during the trial. The plaintiffs' objections to the admission of Defendants' Exhibits A, C, and P are therefore sustained.
The plaintiffs are two environmental groups — Citizens Against Toxic Sprays, Inc. (CATS) and the Oregon Environmental Council, Inc. (OEC) — and a cooperative organization of forest workers called Hoedads, Inc. The testimony of Stevens Van Strum, Larry Williams, and Gerald Mackie establishes that members of each of the three plaintiffs are affected by the spraying of phenoxy herbicides because they live in or near the Siuslaw National Forest, work in the Forest, or use the Forest for recreational and other activities. The plaintiffs clearly have standing to sue under NEPA. See Cady v. Morton, 527 F.2d 786, 791 (9th Cir. 1975).
The defendants are the Secretary of the United States Department of Agriculture
THE PHENOXY HERBICIDES
The phenoxy herbicides are a group of selective herbicides widely used in crop production and in the management of forests, rangelands, aquatic habitats, and industrial and urban sites. These herbicides, which are related to naturally-occurring plant growth regulators, kill plants by causing malfunctions in growth processes. They are useful primarily because of their selectivity: broad-leaved plants are generally susceptible, while most grasses, coniferous
The phenoxy acids form a family of compounds having similar chemical and biological properties but differing in details that affect their activity on individual plants, their cost, and other characteristics. The ones presently in use as herbicides in the United States include 2,4-dichlorophenoxyacetic acid (2,4-D), 2,4,5-trichlorophenoxyacetic acid (2,4,5-T), 2-(2,4,5-trichlorophenoxy) propionic acid (2,4,5-TP or silvex), 2,4-DP or dichloroprop, mecoprop, 2,4-DB, 2,4-DEP, erbon, MCPA, and MCPB. Of the phenoxy herbicides, 2,4-D, 2,4,5-T, and silvex are used the most extensively. The amounts produced in the United States in 1971 were, respectively, 45 million, 6 million, and 3 million pounds, representing over 90 percent of all phenoxy production.
All herbicides derived from 2,4,5-trichlorophenol —including 2,4,5-T and silvex (but not 2,4-D) — contain a chemical contaminant formed in the manufacturing process known as 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD). TCDD is one of the most toxic chemicals known to man. Its presence and significance in phenoxy herbicides have become known only in recent years, although the herbicides themselves have been in use since the late 1940s. TCDD cannot be eliminated entirely from the products of 2,4,5-trichlorophenol. However, refinements in production methods have succeeded in reducing the level of TCDD from up to 80 parts per million (ppm) to less than 0.1 ppm.
The phenoxy herbicides have been the subject of scientific research for many years. From time to time attention has been focused on them because of outbreaks of skin eruptions known as chloracne among workers involved in their production. One such outbreak occurred in a Dow Chemical plant in 1964.
The concern over TCDD and the phenoxy herbicides has reached its current level, however, only since the late 1960s. Two significant events took place at that time. First, a mixture of 2,4-D and 2,4,5-T known as Agent Orange was used extensively in South Vietnam as a defoliant. Charges of resulting damage to human, animal, and plant life lead to a number of scientific studies of the effects of Agent Orange. Second, a study by the Bionetics Research Laboratories reported that 2,4,5-T caused teratogenic effects (birth defects) in mice and rats.
In late 1969 President Nixon's Science Advisor announced the Bionetics findings and reported that government actions would be taken to restrict the use of 2,4,5-T. Early the next year, hearings on the effects of 2,4,5-T on man and the environment commenced before the Subcommittee on Energy, Natural Resources, and the Environment of the United States Senate. On April 15, 1970, the Secretaries of Agriculture, Interior, and Health, Education, and Welfare announced suspension of the registration of 2,4,5-T for (1) all aquatic uses and (2) liquid formulations for home and recreational use. This announcement was followed on May 1, 1970, by a notice of cancellation of the registration of 2,4,5-T for (3) granular formulations for home and recreational use and (4) all uses on food crops intended for human consumption.
Following these actions, Dow Chemical Co. and other registrants exercised their statutory rights by challenging the cancellation of registration as to rice (one of the major food crops treated with 2,4,5-T) and
On May 7, 1971, the nine-member advisory committee
The committee report recommended that use of 2,4,5-T be permitted on forests, rangelands, and rights-of-way under certain conditions, provided that a limit of 0.1 ppm be set on TCDD contamination of 2,4,5-T, that 2,4,5-T be applied no more often than once a year at any one site, and that 2,4,5-T be applied with proper caution to avoid human contact. The committee also recommended another review following further specific research on the bioaccumulation of TCDD. One committee member
On August 6, 1971, after considering the report of the advisory committee, the Administrator of the EPA issued an order continuing the cancellation of 2,4,5-T for use on food crops until completion of the public hearing process. 36 Fed.Reg. 14777 (1971). In response to Dow's objections to this order, the Administrator issued a further order on November 4, 1971, reaffirming the earlier order and stating that his action was mandated by the following facts:
Dow then filed an action in the United States District Court for the Eastern District of Arkansas seeking injunctive and other relief against the Administrator's decision. At the suggestion of the court, the Administrator entered a further order on April 13, 1972, continuing the cancellation of registration and reiterating his earlier findings of fact. Id. The district court, concluding that the Administrator had not followed the procedures mandated by FIFRA, then enjoined further EPA proceedings against 2,4,5-T until entry of an order complying with FIFRA. Id. at 1321-1322. On appeal, the Eighth Circuit reversed on the ground that the Administrator had not yet entered a final order subject to judicial review. Id. at 1326.
With the Dow litigation terminated, the EPA resumed its administrative proceedings against 2,4,5-T. On July 19, 1973, the Administrator issued a notice of intent to order a consolidated public hearing on all registered uses of 2,4,5-T (including use for rice) in April, 1974. 38 Fed.Reg. 19860 (1973). He further ordered that the following issues (in addition to the ten issues delineated in his orders of November 4, 1971, and April 13, 1972) be addressed by the hearing:
38 Fed.Reg. 19859-19860 (1973).
The start of the hearing was to be delayed to permit the EPA to complete an environmental and human monitoring project on the presence of TCDD in 2,4,5-T and the extent to which TCDD may adversely affect human and animal health. 38 Fed.Reg. 19860 (1973). Early in 1973 two Harvard researchers, Professor Matthew S. Meselson and Dr. Robert Baughman, had reported the development of a method for achieving accuracy in detecting TCDD in the part per trillion (ppt) range. The EPA monitoring program was intended
The methodological problems in monitoring TCDD residues continued. EPA researchers found that their results were by no means conclusive, and only partly suggestive, because of various interferences. They concluded that solutions to these problems would be obtained "only after a long involved period of basic research investigation and idealization of instrumentation."
Since the order of June 24, 1974, the EPA's monitoring project has continued. A Dioxin Planning Conference was held in July, 1974, with a final Dioxin Implementation Plan
Apparently, EPA has not yet initiated proceedings for the reregistration of phenoxy herbicides under the new procedures established by the Federal Environmental Pesticide Control Act of 1972, as amended,
FOREST MANAGEMENT PRACTICES IN THE SIUSLAW NATIONAL FOREST
About four-fifths of the total amount of phenoxy herbicides used in the United States is applied to cropland and rangeland. However, the phenoxy herbicides — principally 2,4-D, 2,4,5-T, and silvex — have also played a vital role in the management of the nation's forests over the past twenty years. In 1972 approximately 278,905 acres of forest land were treated with 2,4-D, 189,517 acres with 2,4,5-T, 14,907 acres with 2,4-D and 2,4,5-T in combination with each other, several thousand acres with 2,4-D or 2,4,5-T in combination with other herbicides, and 1,073 acres with silvex.
The use of phenoxy herbicides in forestry, as elsewhere, is to discriminate between desired and undesired plants. The most important uses are in preparation of sites for reforestation and in release of young conifers from competing brush and weed trees. Because the competing woody plants are more susceptible to the phenoxy herbicides at certain times than are the conifers, properly timed applications affect the undesired species without harming the conifers.
For site preparation, a high degree of control is needed and the herbicides used must kill most of the competing woody vegetation, with a minimum of resprouting. Often, spraying is followed by broadcast burning. The site can then be stocked with conifers. After two to three years a second application of herbicides may be required to release the young conifers from competing vegetation. The objective is not to kill all competitive vegetation, but to increase the amount of light reaching young conifers in the understory and decrease brush competition for soil moisture and nutrients. Given three to five years of improved light and moisture, young conifers on most sites will outgrow the herbicide-damaged brush and be permanently released. Usually, only one or two herbicide treatments are needed on any site over a 30- to 95-year forest rotation cycle.
Phenoxy herbicides are most frequently applied to forest lands in the form of aerial broadcast sprays, using helicopters. They may also be applied by fixed-wing aircraft, by ground sprays, or by individual plant treatment. Formulations used in the forest may be esters, emulsifiable acids, water- or oil-soluble amines, or wettable powders, but low volatile esters are by far the most widely used.
In forests of the Pacific Northwest, 2,4-D and 2,4,5-T are used on approximately 75 percent of the acreage treated with herbicides each year. The choice of herbicidal treatment for a particular site is usually dictated by the two to four species that are predominant in the brushfield. Often 2,4-D and 2,4,5-T are combined in a 1:1 "brushkiller" mixture where a half dozen or more species are abundant in the plant community to be treated. For purposes of site preparation, the most effective treatment is during the early foliar period in the late spring when shrubs and weed trees reach their maximum susceptibility to herbicides. For release of young conifers, application is usually during the budbreak
The Siuslaw National Forest (the Forest) is located in Region 6 of the United States Forest Service, which includes National Forests within Oregon, Washington, and two counties in northern California. The Forest is in the Central Oregon Coast Range within an area south of Tillamook, north of Reedsport, and west of Corvallis and Eugene. It includes portions of Benton, Coos, Douglas, Lane, Lincoln, Polk, Tillamook, and Yamhill Counties, totalling approximately 620,000 acres. The land ownership pattern is a mixture of public and private, with river valley bottoms usually owned by local residents. The forest types are characteristic of Sitka spruce and western hemlock vegetation zones, with Douglas-fir predominant. The Forest includes four Ranger Districts: Hebo in the north, Waldport in the west central and Alsea in the east central area, and Mapleton in the south.
A combination of high rainfall, mild temperatures, relatively long growing season, and deep fertile soil within the Siuslaw National Forest permit development of some of the most productive forests in the world.
For at least twenty years, phenoxy herbicides have been used in the Forest for site preparation and release of Douglas-firs and, to a lesser extent, for minor control of noxious or poisonous plants and for maintenance of improvements. Two formulations are most frequently used: a brushkiller mixture of one pound ae 2,4-D and one pound ae 2,4,5-T per acre and a formulation of 2,4,5-T alone, usually at three pounds ae per acre. More acreage is treated with 2,4,5-T than with any other herbicide. Since 1974 the projected annual acreage to be sprayed by helicopter with 2,4-D and 2,4,5-T for site preparation and conifer release has been approximately one to two
THE EISs FOR THE VEGETATION MANAGEMENT PROGRAM IN THE FOREST
Three EISs covering the vegetation management program in the Siuslaw National Forest have been admitted into evidence as exhibits: the first covering the period from January 1, 1974, to July 1, 1975 (1974-75 EIS), the second covering the period from July 1, 1975, to June 30, 1976 (1975-76 EIS), and the third covering the period from July 1, 1976, to September 30, 1977 (1976-77 EIS). The 1976-77 EIS is now in force within the Forest, and its adequacy is the subject of plaintiffs' NEPA claim. The following paragraphs describe the manner in which each of the three EISs was developed and issued by the Forest Service.
In preparing for the 1974-75 EIS, a Regional Pesticide-Use Coordinating Committee (RPUCC) was appointed for Region 6. The RPUCC divided Region 6 into six zones for purposes of preparing separate EISs, with the Siskiyou, Siuslaw, and Umpqua National Forests designated as Zone VI.
The 1975-76 EIS was prepared in the form of an addendum to the 1974-75 EIS and its supplement and was also directed at the Siskiyou, Siuslaw, and Umpqua National Forests. The new information included in the addendum related primarily to the control of drift and to 2,4,5-T and TCDD. The draft 1975-76 EIS was issued to CEQ and the public on January 10, 1975, and the final EIS on May 8, 1975. The Regional Forester approved the final EIS on June 18, 1975.
At the same time that it was decided that addenda to the prior EISs would be issued for 1975-76, it was also decided that a new approach would be adopted within Region 6 for EISs on the vegetation management programs from 1976-77 on. Instead of annual zone-wide EISs, a single region-wide no-year EIS would be prepared, with addenda to be issued thereafter containing only such specific additional information as might be needed. A special Task Force was appointed to supervise the drafting of the region-wide EIS. A preliminary draft EIS was circulated to all National Forests on March 14, 1975, a final draft EIS was made available to CEQ and the public on September 16, 1975, and the final EIS was issued on February 13, 1976. On April 12, 1976,
Each of the three EISs contains a description of projects planned within each National Forest for the period covered by the EIS, including acreages, chemicals, application rates, formulations, and maps. The final decision to treat a particular area is made, however, only after an on-the-ground examination by Ranger District personnel. This examination generally takes place some four to five months before spraying. A contract proposal is then prepared and advertised for bids. The actual spray program may vary somewhat in location and extent from that described in the EIS.
THE NEPA CLAIM
The plaintiffs allege that the current EIS on the Siuslaw National Forest's vegetation management program does not satisfy the requirements of NEPA insofar as phenoxy herbicides are concerned. The plaintiffs rely upon two provisions of NEPA, 42 U.S.C. § 4332(2)(C) and § 4332(2)(H). These sections provide as follows:
Although the amended complaint alleges violations of both subsections (C) and (H), the plaintiffs have drawn no distinctions between these subsections either in the evidence presented or in the briefs submitted to the court. The NEPA claim will therefore be treated as presenting a single question: is the 1976-77 EIS for the Siuslaw National Forest adequate with respect to phenoxy herbicides?
The plaintiffs attack the adequacy of the EIS on several grounds. Their allegations may be categorized as claims (1) that the discussion of the environmental effects of phenoxy herbicides is inadequate, (2) that the consideration of alternatives to their use is inadequate, and (3) that the Forest Service failed to follow the statutory procedures for obtaining and considering the comments of other government agencies and of the public on the proposed EIS. The most substantial of these claims is the first.
The federal courts have developed a large body of case law on the standards to
An EIS is adequate only if it serves substantially the two basic purposes for which it was designed. That is, it complies with NEPA only when
The guidelines for the preparation of EISs which have been promulgated by the CEQ
A. ADEQUACY OF THE DISCUSSION OF ENVIRONMENTAL EFFECTS
The adequacy of an EIS must be determined through use of a rule of reason. Thus, a "reasonably thorough discussion of the significant aspects of the probable environmental consequences" is all that is required. Id. at 1283. In other words, the role of the court is not to substitute its judgment for that of the agency as to the environmental consequences of its actions but to determine whether the agency has taken a "hard look" at those consequences. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 96 S.Ct. 2718, 2731 n.21, 49 L.Ed.2d 576 (1976).
An EIS is not inadequate when it fails to discuss remote and highly speculative consequences. Trout Unlimited, supra, 509 F.2d at 1283. Nor will disagreement among experts about environmental consequences serve to invalidate an EIS. Life of the Land v. Brinegar, 485 F.2d 460, 472 (9th Cir. 1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974). Further, it is not necessary that all environmental effects of the proposed action be known. Cady v. Morton, 527 F.2d 786, 796 (9th Cir. 1975).
It is necessary, however, that the EIS indicate the extent to which environmental effects are uncertain or unknown. Sierra Club v. Froehlke, supra, 534 F.2d at 1296; Scientists' Institute for Public Information, Inc. v. AEC, 156 U.S.App.D.C. 395, 481 F.2d 1079, 1092, 1098 (1973); Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1280 n.11 (9th Cir. 1973). Where scientists disagree about possible adverse environmental effects, the EIS must inform decision-makers of "the full range of responsible opinion" on the environmental effects. Committee for Nuclear Responsibility, Inc. v. Seaborg, 149 U.S.App.D.C. 380, 463 F.2d 783, 787 (1971). Conclusory statements which do not refer to scientific or objective data supporting them do not satisfy NEPA's requirement for a "detailed" statement. Trout Unlimited, supra, 509 F.2d at 1284; Natural Resources Defense Council, Inc. v. Grant, 355 F.Supp. 280, 287 (E.D.N.
The plaintiffs contend that the 1976-77 EIS inadequately discusses the effects of phenoxy herbicides upon (1) the forest ecosystem, including soil invertebrates, lichens and mosses, fungus diseases, and insects, (2) silviculture, (3) agricultural crops, and (4) human and animal health. Plaintiffs' briefs describe the basic categories of error and omission present in the EIS as follows:
If true, these charges might well establish shortcomings rendering the EIS inadequate under the authorities cited above.
The evidence presented by the plaintiffs has raised some questions regarding the adequacy of the 1976-77 EIS in the first, second, and third areas. Nevertheless, I find that the EIS has satisfied the requirement for a "reasonably thorough discussion of the significant aspects of the probable environmental consequences" in these areas. Trout Unlimited, supra, 509 F.2d at 1283.
(1) The Forest Ecosystem
The claim that the EIS inadequately discusses the effects of phenoxy herbicides upon the forest ecosystem rests almost entirely upon the testimony of Professor William C. Denison, an Associate Professor in the Department of Botany and Plant Pathology and a member of the Faculty of Ecology at Oregon State University. Professor Denison specializes in the biology of fungi and the ecology of western coniferous forests, in particular Douglas-fir forests. He testified that information drawn from agricultural research suggests that long-term use of herbicides increases the incidence of insect pests and fungal disease, that effects of herbicides upon soil invertebrates should have been considered, and that the present state of knowledge about herbicides cannot eliminate the possibility that available nitrogen will be reduced because of direct toxicity to nitrogen-fixing lichens and that lichens may accumulate toxic herbicides which will be passed along in the food chain. Professor Denison concluded that the risk of long-term effects from herbicides upon the health and productivity of the forest environment is substantial. In addition to the shortcomings pointed out in Professor Denison's testimony, the plaintiffs claim that the EIS's discussion of the forest ecosystem is inadequate because potential synergistic effects associated with herbicides are not mentioned
The testimony of the plaintiffs' witnesses about potential effects of herbicides upon the forest ecosystem is not directed at phenoxy herbicides specifically, but at herbicides in general. The hazards suggested by these witnesses have not been substantiated at this point by scientific research. Under these circumstances, the supposed effects of phenoxy herbicides upon the forest ecosystem must be viewed as remote and speculative. Failure to discuss such environmental
The plaintiffs claim that the discussion of silvicultural effects of phenoxy herbicides contained in the 1976-77 EIS is inadequate in two respects: (1) the value of alder (which is a target of the vegetation management program) is understated and (2) the damage caused to conifers by the program is not acknowledged.
Professor Arthur W. Galston, Gerald Mackie, and Stan E. Sherwood all testified to the value of alder as a supplier of nitrogen in the forest. Mr. Sherwood, who is engaged in the business of logging alder, also testified to the increasing value of alder in the production of pulp and paper and of quality furniture.
The 1976-77 EIS acknowledges the value of alder as a producer of nitrogen (1976-77 EIS, pp. 7, 8, 12, 62, 108). In the 1974-75 EIS, alder was discussed in some detail in response to the comments submitted by a private citizen (1974-75 EIS, pp. 82-86). I find no inadequacy in the EIS in this regard.
The plaintiffs point to two pieces of evidence in support of their claim that the spraying of herbicides damages conifers. The first is the Herbicide Use Evaluation Forms attached to the testimony of Thomas C. Turpin,
This evidence does not render the 1976-77 EIS inadequate. Although the EIS might have mentioned the results revealed by Herbicide Use Evaluation Forms from prior years, the record does not indicate that reference to those results was required. The six forms attached to Mr. Turpin's testimony indicate that damage to Douglas-firs was confined to categories 1 and 2 on a scale ranging up to 5. Very few Douglas-firs fell within category 2. The evidence does not establish that the damage which was sustained was permanent. Likewise, the Gratkowski paper was not so important that failure to refer to it makes the EIS inadequate. As a result of subsequent research, Douglas-firs are no longer sprayed before conifer growth has ceased.
(3) Agricultural Crops
The 1976-77 EIS mentions in general terms that application of herbicides will adversely affect some nontarget plants, as well as the target vegetation (1976-77 EIS, pp. i, 70, 87). It does not, however, discuss in specific terms the potential hazard to agricultural crops in the vicinity of spray projects. The CAST Report indicates that the hazard is a serious one:
Professor Boysie E. Day further testified that he has seen harm caused to crops fifteen miles away and cases of negligent application causing harm even farther away. Tr. 100.
Potential effects of phenoxy herbicides upon agricultural crops are obviously of importance in an area such as the Siuslaw National Forest, where public and private land ownership are intermixed. At least one family has sustained severe damage to tomatoes, beans, melons, and grapes in their garden shortly after the Forest Service sprayed adjoining land in the summer of 1975.
If this deficiency in the EIS stood alone, it would probably not be sufficient to justify a finding of inadequacy. Courts are not to "fly speck" environmental impact statements. Lathan v. Brinegar, supra, 506 F.2d at 693. The 1976-77 EIS is clearly inadequate, however, in its discussion of another subject: the effects of phenoxy herbicides upon human and animal health.
(4) Human and Animal Health
Discussion of the effects of 2,4-D, 2,4,5-T, and TCDD upon humans, animals, and aquatic organisms in the forest may be found at pages 23-33, 58, 60-61, 63-64, and 80-81 of the 1976-77 EIS.
The environmental impact upon health of the vegetation management program proposed in the 1976-77 EIS is summarized as follows:
The EIS contains seven pages of tables on the acute and chronic toxicity of 2,4-D and 2,4,5-T (pp. 24-30). On carcinogenicity, it notes one researcher's suggestion that 2,4-D and 2,4,5-T "need more testing but the priority for testing is not high in comparison with some other pesticides" (p. 31). On mutagenicity, the EIS states that 2,4-D and 2,4,5-T "have mutagenic potential as demonstrated in tests with several plant systems" but concludes that "[t]he likelihood of significant mutagenesis occurring from normal use of phenoxy herbicides is small" (p. 31). The EIS acknowledges the Bionetics findings on teratogenicity in rats and mice and the findings of other researchers on teratogenicity in chicks, but suggests that the validity of those findings may be questioned for various reasons (pp. 31, 23). The EIS also cites the finding of the Advisory Committee on 2,4,5-T
The plaintiffs claim that this discussion of the hazards to human and animal health posed by the phenoxy herbicides and particularly TCDD is not adequate under the standards established by NEPA. After thoroughly considering the evidence presented in this case, I am in complete agreement with the plaintiffs. Before turning to the specific evidence which convinces me that NEPA has been violated, however, I wish to remark upon some of the arguments advanced in defense of the EIS.
The defendants contend that the plaintiffs are litigating their claims "at the wrong time, in the wrong case, and against the wrong defendants" (Defendants' Reply and Trial Memorandum, p. 34). That is, the defendants assert that the plaintiffs seek a finding that phenoxy herbicides are unsafe: a finding that can and should be made only by the EPA in the performance of its statutory duties, subject to judicial review in an appropriate proceeding. Because the defendants have taken this position, they objected at trial on the ground of irrelevancy to the introduction of any evidence on the safety of the phenoxy herbicides or TCDD. Their objections were overruled.
The overruling of the defendants' objections is easily explained. The question before me is not whether phenoxy herbicides are safe or whether I would permit their use in the Siuslaw National Forest were that decision entrusted to me. The question,
Nor can the Forest Service avoid its obligations under NEPA by arguing that any necessary scientific inquiry must be conducted by the EPA. NEPA mandates a case-by-case balancing judgment on the part of federal agencies. The only agency in a position to make such a judgment in a particular case is "the agency with overall responsibility for the proposed federal action — the agency to which NEPA is specifically directed". Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1123 (1971). The responsible agency may not attempt to abdicate to any other agency merely because that agency is authorized to develop and enforce environmental standards. Id. Thus, the mere fact that a program involves use of substances registered under FIFRA does not exempt the program from the requirements of NEPA. Environmental Defense Fund v. Hardin, 325 F.Supp. 1401, 1407 (D.D.C.1971). An agency cannot satisfy its NEPA obligations by obtaining from EPA a satisfactory rating of its EIS, as the Forest Service has done.
No subject to be covered by an EIS can be more important than the potential effects of a federal program upon the health of human beings. The defects of the 1976-77 EIS in this area are substantial. Much information of vital interest to decision-makers and to the public has simply been omitted; in other instances, the information provided is either incomplete or misleading. The EIS does not indicate the extent to which effects of phenoxy herbicides are unknown or acknowledge the opinions of responsible scientists who counsel against their use. Moreover, many conclusory statements about the safety of phenoxy herbicides are unsupported by scientific or objective data.
This opinion will not attempt to summarize all the evidence which has been introduced on the potential effects of 2,4-D, 2,4,5-T, and TCDD upon human and animal health. The most glaring inadequacies of the 1976-77 EIS which have been revealed by the evidence are highlighted, however, in the following paragraphs.
The 1976-77 EIS nowhere acknowledges the extreme toxicity of TCDD or the opinions held by eminent scientists about its hazards. Professor Virgil C. Boekelheide, Professor of Organic Chemistry and Acting Head of the Department of Chemistry of the University of Oregon, testified that TCDD
Dr. Wilbur P. McNulty, Jr., Chairman of the Laboratory of Pathology at the Oregon Regional Primate Research Center, also testified to the extreme teratogenicity and acute and chronic toxicity of TCDD.
Professor George Streisinger, Professor of Biology and Research Associate in the University of Oregon's Institute of Molecular Biology, concluded based on existing scientific knowledge that the herbicide program used by the Forest Service in the Siuslaw National Forest "does pose a danger to the health of humans" (Proposed Testimony of Professor George Streisinger, p. 2). Using the level of lethality of TCDD to guinea pigs, Professor Streisinger gave the following example of the potential hazard to humans:
Professor Streisinger also criticized the conclusions of the 1976-77 EIS with respect to potential mutagenic and carcinogenic effects of the phenoxy herbicides:
The testimony of Professor Arthur H. Westing, Professor of Botany at Windham College in Putney, Vermont, was similar to that of the foregoing scientists. Professor Westing concluded that
The failure of the 1976-77 EIS to acknowledge the existence of responsible scientific opinion about TCDD such as that expressed during the trial of this case would of itself render the EIS inadequate. In addition, however, several other major deficiencies in the EIS are apparent.
One obvious deficiency is the failure of the EIS to discuss, or even to mention, the history of the EPA administrative proceedings directed at 2,4,5-T and other herbicides containing TCDD.
A related deficiency in the 1976-77 EIS is its lack of any significant discussion of the ongoing TCDD residue monitoring program being conducted by the EPA.
The memorandum itself was introduced into the record in this case as an attachment to the direct testimony of Dr. Theodor D. Sterling. The memorandum, written by Dr. Ralph T. Ross (then Dioxin Program Coordinator), reported that one-third of the beef fat samples collected from cattle rangeland treated with 2,4,5-T had been analyzed, with the following results:
Dr. Ross concluded:
Because analysis of the remaining samples would not be completed until mid-September, 1975, Dr. Ross recommended that a final decision on the registration of herbicides containing TCDD be delayed until then. Id. In light of this memorandum, the failure of the 1976-77 EIS to discuss the EPA monitoring program in greater detail is inexplicable.
The trial in this case brought to light the fact that TCDD residues had been found by the EPA in samples of animal tissue taken in 1973-74 from areas in the Siuslaw National Forest which had recently been sprayed with 2,4,5-T. This fact is never mentioned in the 1976-77 EIS, even though the 1974-75 EIS had acknowledged that the Forest was participating in the study.
A final example of the inadequacy of the 1976-77 EIS in its discussion of the potential effects of phenoxy herbicides is its complete omission of any reference to the controversy over the effects of Agent Orange in Vietnam. The earlier EISs had at least mentioned that controversy (although they dismissed any suggestion that studies in Vietnam indicated possible health hazards).
The failure of the 1976-77 EIS to mention the Vietnam controversy is unreasonable, particularly when spraying of 2,4,5-T in the Siuslaw National Forest is frequently carried out near the homes and farms of local residents.
The evidence summarized above reveals that the 1976-77 EIS fails to acknowledge the extreme toxicity of TCDD or the opinions of scientists about its hazards, to discuss EPA administrative proceedings against 2,4,5-T or the ongoing TCDD residue monitoring program being conducted by the EPA, to report on TCDD levels found in animal specimens taken from the Siuslaw National Forest, or to mention the controversy over the effects of Agent Orange in Vietnam. These are the major, but by no means the only, shortcomings of the EIS in its discussion of the potential effects of phenoxy herbicides upon human and animal health.
B. ADEQUACY OF THE CONSIDERATION OF ALTERNATIVES
NEPA requires that every EIS contain a detailed statement on alternatives to the proposed federal action.
The purpose of the NEPA requirement for a discussion of alternatives to the proposed federal action is twofold: "to assure that alternatives are explored in the initial decision-making process and to provide an opportunity to those removed from that process also to evaluate the alternatives." Trout Unlimited, supra, 509 F.2d at 1286. In order to accomplish these objectives, the discussion of alternatives "`must go beyond mere assertions' and provide sufficient data and reasoning to enable a reader to evaluate the analysis and conclusions and to comment on the EIS." Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79, 93 (2d Cir. 1975). A detailed and careful analysis of the relative merits and demerits of the proposed action and possible alternatives is of such importance in the NEPA scheme that it has been described as the "linchpin" of the EIS. Id. at 92. For this reason, the discussion of alternatives must be undertaken in good faith; it is not to be employed to justify a decision already reached. Citizens Against the Destruction of Napa v. Lynn, 391 F.Supp. 1188, 1195 (N.D.Cal.1975).
One question which may be raised under NEPA is whether an EIS considers a sufficiently broad range of alternatives. As noted in Life of the Land v. Brinegar, supra, 485 F.2d at 472,
An alternative may not be disregarded merely because it does not offer a complete solution to the problem. Natural Resources Defense Council, Inc. v. Morton, 148 U.S. App.D.C. 5, 458 F.2d 827, 836 (1972).
A second question which may be raised is whether, assuming all reasonable alternatives have been considered, the discussion of those alternatives is adequate. The CEQ Guidelines
The challenge made by the plaintiffs to the 1976-77 EIS is not to the range of alternatives considered but to the adequacy of the discussion of those alternatives:
Specifically, the plaintiffs charge
The portions of the 1976-77 EIS which are pertinent to these claims by the plaintiffs may be found at pages 17-19 (relative costs of various methods of vegetation control), 68-70 (benefits of vegetation management), and 90-96 (alternatives to the proposed action, including fire, mechanical and manual methods, biological control, and no treatment). After reviewing these pages and the evidence introduced in this case,
Some of the deficiencies of the EIS are apparent merely from reading the document itself. The discussion of alternatives at pages 90-96 consists essentially of one generality after another. The section on fire, for example, simply lists eight advantages and seven disadvantages to its use. The section on biological control appears to be almost totally irrelevant to problems of site preparation and release of conifers, even though these are the chief purposes for which herbicides are employed. Although
Nowhere except at pages 17-19 does the discussion of alternatives to use of herbicides employ specific data. The testimony of the defendants' own witness establishes, however, that the figures which are provided on average cost/acre of various methods of vegetation management are highly misleading or totally incorrect. The table on page 18 shows an average cost/acre of $20 for release of conifers by herbicides and $150 for hand release. Thomas C. Turpin, Silviculturist for the Siuslaw National Forest, testified, however, that the average cost of conifer release using herbicides is actually $50/acre, with actual costs ranging from $35 to $60.
The 1976-77 EIS contains no discussion of the relative effectiveness of herbicides and other methods of vegetation control in enhancing long-term productivity. It provides no data on the acreage now being treated by each method. It does not discuss possible combinations of the different methods employed for vegetation management or possible variations in methods based on geographic or other differences between National Forests. It does not indicate whether other herbicides may be substituted for the ones recommended or provide information on how effective such substitutes might be. In short, the EIS does not rigorously explore or objectively evaluate the proposed herbicide program and the alternatives to it. It cannot, therefore, serve adequately either those who must employ it to make decisions about vegetation management in the National Forests or those outside the decision-making process who wish to evaluate the alternatives.
The plaintiffs' NEPA claim is directed only at that portion of the Forest Service's vegetation management program in the Siuslaw National Forest which employs phenoxy herbicides. The plaintiffs have not sought to enjoin the use of any other herbicides. The widest scope of relief which would be appropriate because of the EIS's inadequate discussion of alternatives would therefore be an injunction against use of all phenoxy herbicides in the Forest until such time as an adequate EIS has been prepared.
My conclusion that the alternatives discussion is inadequate is inseparable, however, from my conclusion that the EIS does not adequately address the health issues presented by TCDD-contaminated phenoxy herbicides. The failure to explore and evaluate in greater detail the alternatives to the use of phenoxy herbicides assumes importance largely because the potential environmental risks of TCDD have not been considered in balancing the net benefits of phenoxy herbicides versus other methods of vegetation control. For this reason, I find that the Forest Service should be enjoined only from the use of TCDD-contaminated herbicides in the Forest pending the completion of an adequate EIS.
C. COMMENTS OF GOVERNMENT AGENCIES AND THE PUBLIC
The final NEPA claim raised by the plaintiffs is that the defendants failed
The portion of 42 U.S.C. § 4332(2)(c) which is pertinent to this claim provides that, before issuing a final EIS, the responsible federal official
The policy statement contained in the CEQ Guidelines states with respect to this process that
Other portions of the CEQ Guidelines contain the following directives:
The Forest Service Guidelines are similar but provide a time limit for comment of not less than 60 days
The procedures followed by the Forest Service in preparing and circulating the 1976-77 EIS
The plaintiffs contend that the Forest Service's commenting procedures were inadequate in two respects: unavailability of the documents to be reviewed and improper handling of comments once received.
The defendants submitted testimony in rebuttal of some of these charges.
THE EAGLES ACT CLAIM
The Act for the Protection of Bald and Golden Eagles, 16 U.S.C. §§ 668 et seq., provides both criminal and civil penalties for specified acts which harm bald or golden eagles.
Although the Eagles Act does not expressly confer a right of action upon private citizens, the plaintiffs ask this court to recognize an implied civil remedy for violations of its provisions. They claim that the requirements of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), for implication of a private civil remedy have been satisfied.
The plaintiffs argue that the evidence introduced in this case
Although the plaintiffs have failed to establish the alleged violation of the Eagles Act, they have succeeded in proving that the defendants have violated NEPA in two respects. Insofar as the 1976-77 EIS covers the use of phenoxy herbicides in the Siuslaw National Forest, that document inadequately discusses the potential environmental effects of TCDD-contaminated herbicides and the alternatives to their use.
For the reasons set forth in this opinion, the plaintiffs are entitled to a judgment declaring that the 1976-77 EIS prepared by the defendants on vegetation management with herbicides in the Siuslaw National Forest is legally inadequate because it fails to satisfy the requirements of NEPA. Further, the plaintiffs are entitled to a permanent injunction enjoining further applications of the TCDD-contaminated herbicides 2,4,5-T and silvex in the Siuslaw National Forest unless and until the defendants have properly remedied the defects in this EIS. This court shall retain jurisdiction of this proceeding until an adequate EIS has been prepared, circulated, and filed.
This opinion shall constitute findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).
Total Acres Sprayed -----------------------------------------------------
Date 2,4-D & 2,4,5-T 2,4,5-T 2,4-D1/1/74-7/1/75 6,900 (1974) 4,300 (1974) 500 (1974) 6,500 (1975) 1,250 (1975) 400 (1975) 7/1/75-6/30/76 9,100 4,300 -- 7/1/76-9/30/77 7,800 5,000 400
Several hundred additional acres are sprayed by helicopter with 2,4-D and/or 2,4,5-T in combination with other herbicides. The use of phenoxy herbicides in ground spraying and individual plant treatment is much more limited.
The language of the civil section, 16 U.S.C. § 668(b), is similar except with respect to the intent element:
I need not decide whether the statutory changes now afford the plaintiffs a jurisdictional basis for review of Forest Service actions. Even if the new statute entitles them to sue for the relief they desire without regard to the requirements of Cort v. Ash, and even if the plaintiffs could overcome the possible barrier of lack of standing, the outcome on their Eagles Act claim would be no different. As noted below, the evidence fails to establish that the Act has been violated.