Opinion for the Court filed by Senior Circuit Judge BAZELON.
BAZELON, Senior Circuit Judge:
This case presents a question familiar to this court
One such condition, hereinafter described as "the pesticide condition," requires objective data that children will not be adversely affected by pesticides and chemicals used on crops.
A. Statutory Framework
As a general rule, Federal law prohibits employment of children under 12 years of age.
29 U.S.C.A. § 213(c)(4)(A) (1979). These requirements are satisfied only if the Secretary makes findings "based on objective data submitted by the applicant." Id.
B. The Regulations
The history of the regulations at issue reveals an agency struggling to establish uniform standards in the face of little or no evidence. Initially, the Department of Labor attempted to set uniform evidentiary benchmarks to establish the requisite safety assurances for work with pesticide-treated crops. Thus, on April 4, 1978, the Department proposed that waivers permitting employment of 10 and 11 year olds would be granted only if employers produced evidence that their pesticides meet health and safety standards of the Environmental Protection Agency (EPA), Occupational Safety and Health Administration (OSHA), National Institute for Occupational Safety and Health (NIOSH), or other "comparable authority." 43 Fed.Reg. 14070 (April 4, 1978). This first agency action was the only one announced with advance notice and opportunity for public comment. The agency solicited responses in a two-day public hearing.
Comments and testimony on the April 4 proposal pointed to the complete absence of relevant health and safety standards for children exposed to pesticides.
The final regulation was published in the Federal Register on June 21, 1978. The preamble acknowledged that the EPA's pesticide exposure standards
After promulgation of the regulations a Federal district court in the State of Washington temporarily enjoined enforcement of the general statutory minimum age restrictions
At this point the Department apparently felt pressed to facilitate the processing of waiver applications by specifying safety standards. On June 15, 1978, the Secretary asked a private consulting firm, Clement Associates, Inc., to review existing scientific literature in an effort to develop criteria for evaluating waiver applications. Clement was directed to focus specifically on strawberry hand-harvesting in Washington and Oregon, and potato hand-harvesting in Maine. What followed was a series of Clement reports, triggering a series of agency modifications of its regulations, each published in the Federal Register without advance notice or opportunity for
The first Clement study recommended "tentative" standards that essentially doubled the "preharvest intervals" set by the EPA for adults.
The next Clement report was requested on March 19, 1979 — some six months after the earlier report. Rather than seeking new field studies to address the special question of pre-adolescent health, the Department asked Clement to review the list of approved pesticides and to investigate additional pesticides. Ten days later, Clement issued a report addressing the carcinogencity of five pesticides. Shortly thereafter, the Department issued another rule removing three known carcinogens from the list of approved pesticides.
Clement then issued another report discussing 16 other pesticides it researched at the request of the Department.
C. Proceedings Below
Plaintiffs-appellants, two private non-profit organizations representing farmworker families,
On May 21, 1979, the district court held a hearing on plaintiffs' motion for temporary relief.
The Department's second witness was a representative of Clement Associates. She explained that Clement's research team reviewed all available studies on known health effects of pesticides listed by the Department and also all existing standards for adult exposure. She further testified that the greater susceptibility of children was taken into account in the recommended entry times. She admitted on cross-examination, however, that further studies were needed to advance knowledge of the effects
The district court denied the motion for preliminary relief. The judge first determined that the statute demanded findings by the Secretary, "based on objective data, that the level and type of pesticides or other chemicals will not have an adverse effect on the health or well-being of the 10 and 11 year old hand harvesters employed under a waiver."
The core of the court's reasoning rested on its acceptance of the Department's view that the 1977 Amendments mandated the issuance of at least some waivers, so safety standards, no matter how arbitrary, had to be set. The court also reasoned that because absolute assurance of safety could never be obtained, the Secretary was justified in acting despite scientific uncertainty about the effect of pesticides on 10- and 11-year-old children.
The district court also ruled on the merits of plaintiffs' procedural claim. The court held that the APA's "good cause" exception to notice and comment procedural requirements was satisfied by the Secretary's desire for expeditious issuance, in time for the harvest season.
The district court declined to grant a preliminary injunction by reasoning that the plaintiffs would lose on the merits.
A. The Test for Granting Preliminary Injunctions
Over twenty years ago, this court articulated these four factors to be weighed by a court before granting a stay or a preliminary injunction:
Virginia Petroleum Jobbers Association v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958). These factors have assisted analysis ever since, and we see no reason to depart from them now.
The district court indicated no consideration of factors (2), (3), and (4) listed above, each of which weighs in plaintiffs' favor. Indeed each of these factors supports a preliminary injunction to preserve the status quo pending a decision on the merits,
1. Irreparable injury to plaintiffs.
Interlocutory injunctions are sometimes necessary to assure that rights sought are not so eviscerated during trial that final relief would be to no avail. The injury to plaintiffs, absent interim relief, must also be evaluated to permit a comparison with harms to other parties and to the public.
Here plaintiffs represent children
The risk of harm from such exposure pendente lite would not be eliminated even if plaintiffs ultimately were to win on the merits.
2. Harm to other parties.
The obviously interested parties here are the defendant Department of Labor, and the agricultural employers, or the growers, who are advantaged by the availability of waivers under the Department's regulation that lists approved pesticides. A preliminary injunction enjoining application of that list would permit waiver only on satisfaction of the statutory requirement of "objective data" — reviewed by the Department and provided by applicant employers — establishing that employment conditions and pesticide exposure would not adversely affect 10 and 11 year olds.
Growers seeking waivers thus would suffer from a diminished labor pool and would either be short on labor or have to pay more to attract employees. We assume that this result would indeed be burdensome, because under the statutory and regulatory schemes, waiver applications can be approved only based on objective data that the industry would suffer "severe economic disruption" without the child employees available through a waiver.
The other interested party possibly harmed by a preliminary injunction is the defendant Department of Labor. The harm to it would be the suspension of its list of approved pesticides, and the pressure to respond to demands by both growers and child protection groups. These results do not constitute substantial harm for the purpose of delaying injunctive relief. Indeed, these consequences are no different from the Department's burdens under the statutory scheme. The Department could still seek sufficient information to support reliable safety standards, and the Department could also initiate notice and comment rule-making for that same purpose. Especially when compared with the irreparable harm from children's exposure to known dangers, the foreseeable consequences to the Department
3. The Public Interest
The public interest is a uniquely important consideration in evaluating a request for a preliminary injunction. As the Supreme Court has held, "Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved."
Here, two competing problems for the public interest arise. First, how will the price of produce be affected if a preliminary injunction limits the availability of 10-and 11-year-old hand harvesters? Second, what health effects would 10- and 11-year-old children risk if allowed employment? Thus, consideration of the public interest requires us to replay the analysis of the two previous factors. We must ask what is the proper balance between the economic burdens to growers denied waivers, a burden ultimately shifted to consumers, and the irreparable harm to children exposed to pesticides and chemicals through employment allowed waivers? Once again, the balance must be struck in favor of the protection of children.
In sum, we conclude that the three factors ignored by the district court clearly favor the plaintiffs. It may well be that a preliminary injunction was warranted even if the district court had correctly concluded that plaintiffs would not be likely to prevail on the merits. Even if that were the case, plaintiffs needed only to present a "serious legal question" for preliminary relief to be granted under the other circumstances of their case.
B. The Merits
"The duty to appraise the merits at the stage of preliminary injunction is a duty of appellate as well as trial courts."
Presented only with a motion for preliminary injunction, the district court assessed not only plaintiffs' likelihood of prevailing on the merits, but also issued conclusions of law.
1. The substance of the regulation.
The challenged regulations were issued amidst acknowledged uncertainty. Indeed, assuring safety in exposure to pesticides may be beyond the range of scientific certainty at present.
Here, the district court concluded that the Secretary "could not delay the issuance of waivers until he received assurances that certain pesticides were absolutely safe or presented zero risk because the state of scientific knowledge could not in the near future, if ever, provide such assurances."
First, its concern with the problem of proving absolute safety obscures the simpler question posed by this case: did the Department meet the statutory requirement for issuing waivers in announcing a list of approved pesticides solely on the basis of the Clement reports? The statute requires a finding by the Secretary "based on objective data submitted by the applicant, that ... the level and type of pesticides and other chemicals used would not have an adverse effect on the health or well-being of the individuals to whom the waiver would apply."
This is not a case in which there are data supporting the Secretary's view, but subject to criticism.
The reasoning of the district court is further flawed because of a factual error. The court concluded that "the state of scientific knowledge could not in the near future, if ever" provide requisite assurances of safety.
Bolstered by the unsupported belief that no better evidence could be obtained, the district court concluded that the Secretary was justified in relying on "the best available evidence."
Finally, the district court wrongly reasoned that the regulations had sufficient basis because absolute safety would be impossible to assure. Proof of an absolute — the absence of danger — is indeed beyond reach.
The district court similarly erred in concluding that a requirement of absolute safety "would in effect nullify the congressionally authorized waiver provision."
Apparently unaware of this possibility, the district court reasoned that stringent safety requirements would result in no waivers, and thus violate Congress' intention to permit waivers.
2. Procedural violation
Issued pursuant to statutory authority,
Without advance notice or comment, the subsequent regulations issued by the Department first established and then modified the approved list of pesticides with minimum entry times. The district court found no procedural defect because "the public interest in the expeditious issuance of safety standards for the hand harvesting of crops with a short harvest season" falls within the "good cause" exception to the notice and comment requirement.
These two purposes certainly support the promulgation of rules rather than merely a case-by-case administrative review of pesticides. But good cause to suspend notice and comment must be supported by more than the bare need to have regulations.
The government also here advances the district court's reasoning that there was no procedural defect because the Secretary has agreed to accept additional data from interested parties even now that the regulations are in effect.
Finally, on a practical note, plaintiffs correctly observe that the time pressure posed by the impending harvest seasons was due in large part to the Secretary's own delays. The Department waited nearly seven months between the initial regulation — promulgated through notice and comment — and the first modification of it — promulgated without the requisite procedures.
Because of the urgency of this expedited appeal, we issued a judgment immediately after oral argument.
The matter here on appeal, of course, is the district court's denial of the motion for a preliminary injunction. Subsequent to the filing of this interlocutory appeal, the plaintiffs moved for summary judgment on the grounds that the district court had essentially disposed of the merits in its conclusions of law on the preliminary injunction motion. The district court denied summary judgment because the instant appeal divests the district court of jurisdiction.
Reversed and remanded.
This cause came on to be heard on the record on appeal from the United States District Court and was argued by counsel.
Section 13(c)(4)(A)(iii) of the Fair Labor Standards Act, 29 U.S.C. § 213(c)(4)(A)(iii) (1976), states that the Secretary may grant waivers to permit the employment of 10-and 11-year-old children only if he "finds, based on objective data ..., that ... the level and type of pesticides and other chemicals used would not have an adverse effect on the health or well-being of [the children]." The Clement Report of May 18, 1979, on which the Secretary relied in making his determination, however, was based on the assumption that his recommendations would provide only "reasonable protection" for the children. Further, we find that the Secretary lacked good cause to dispense with the notice-and-comment procedures required by the Administrative Procedure Act, 5 U.S.C. § 553. See Community Nutrition Institute v. Butz, 420 F.Supp. 751 (D.D.C.1976). Accordingly, judgment of the District Court denying a preliminary injunction must be reversed. In order to permit the Secretary to proceed expeditiously with the research which he is undertaking and the notice-and-comment rulemaking to establish appropriate standards for the forthcoming harvest, the judgment of this court and the mandate will issue immediately, with opinion(s) to follow.
On consideration of the foregoing, it is ORDERED and ADJUDGED by this Court that the judgment of the District Court appealed from in this cause is hereby reversed and that the District Court shall enter immediately a preliminary injunction as prayed for pending appropriate notice-and-comment rulemaking.
It is FURTHER ORDERED, that further proceedings in the District Court be stayed pending the above rulemaking.
Although we respect the judge's reasoning, we agree with the parties that his ruling on preliminary relief in effect disposed of the merits. As both parties agreed during oral argument that the full case is ready for review by this court, and as the scope of the district court's preliminary ruling reaches all the merits, this court too reviews the merits of the issues presented. See infra p. 622.
Once granted, waivers must require that employment only be during non-school hours; that the children commute daily between work and permanent residence; that the employment extend only during 8 weeks per calendar year; and that any other conditions set by the Secretary will be followed. 29 U.S.C. § 213(c)(4)(B) (1976).
Memorandum to Grover Wrenn, Director, OSHA Health Standards Program, from Peter Infante, (June 16, 1978), reprinted in Joint Appendix (J.A.) Vol. A at A25-A28. The memorandum also noted that children of this age are "more vulnerable to environmental insult" than others, especially in light of their developing reproductive organs. Id.
43 Fed.Reg. 26564 (June 21, 1978). As the government points out in its brief, the agency also heard two congressmen testify that the proposed regulations would prove too restrictive and would thwart the congressional decision to make waivers available. Gov't Br. at 12 n.6.
Clement Final Report at J.A. Vol. B. at 3-4. Clement called the interim standards it recommended for children "minimum entry times (METs)." Id. at 11.
The Department initially referred to "safe reentry times" and "preharvest intervals" in its regulations. In its April 24, 1979 announcement, the agency explained that these terms
44 Fed.Reg. 24059 (April 24, 1979).
Clement also concluded:
Clement Final Report, J.A. Vol. B at 5-6.
J.A. Vol. A at A49, A81. The research group's final report included the following statement:
Clement Final Report, J.A. Vol. B at 13 (emphasis in original).
In each report, the research group also recommended medical surveillance of all children exposed to pesticides or chemicals because of waivers. J.A. Vol. A at A50, A83; J.A. Vol. B at 13.
In its final report nearly a year later, Clement Associates found "convincing data" that Captan is carcinogenic and that Benomyl is "moderately or highly persistent and [has] serious toxic effects." Clement Report, J.A. Vol. B at 16. Therefore, Clement in its final report did not recommend minimum entry times for these and seven other substances with similar effects. At the same time, it increased the recommended delay period to 16 days for Endosulfan and 40 days for Carbaryl.
The Washington and Oregon State Farm Bureaus filed suit to enjoin implementation of the regulation, this time attacking the removal of Captan and Benomyl from the approved list (Captan removed altogether; Benomyl lacking sufficient data to set minimum entry times). A preliminary injunction was granted but then vacated in that case. Washington State Farm Bureau v. Marshall, Civil Action No. C79-197T; appealed, No. 79-4342. Plaintiffs here participated in that suit as amici curiae.
Tr. at 17, J.A. Vol. A at A145.
Id. at J.A. Vol. A at A126-27 (¶ 8, Conclusions of Law).
Clement Associates similarly identified factors likely to make children "more susceptible than adults to the effects of toxic substances." Clement Associates, Inc., Safety Factors for Children Employed as Harvesters of Strawberries in Washington and Oregon (Aug. 7, 1978), J.A. Vol. A at A42; Clement Associates, Safety Factors for Children Employed as Harvesters of Potatoes in Maine (Aug. 7, 1978), J.A. Vol. A at A64.
Moreover, both claims are beside the point. The issue is not how many children will be irreparably harmed but whether any children represented by the plaintiffs would be. On this record, the plaintiffs have established that the regulations would cause exposure of at least some children to known health risks.
Since 1974, children under 12 could be employed in agriculture only if 1) employed by their parents, or persons standing in the place of their parents or 2) employed with the consent of their parents, or persons standing in the place of their parents, on small farms exempt from the Fair Labor Standards Act, 29 U.S.C. § 213(c)(1)(A) (1976) (codifying Fair Labor Standards Act Amendments of 1974, P.L. 93-259, § 25).
The current provision, which requires objective data that pesticide exposure will not adversely affect 10- and 11-year-old child hand harvesters, was enacted in 1977. 29 U.S.C.A. § 213(c)(4) (1979) (codifying Fair Labor Standards Amendments of 1977, P.L. 95-151, § 8).
559 F.2d 841, 844 (D.C. Cir. 1977). Similarly, the Supreme Court concluded that:
Ohio Oil Co. v. Conway, 279 U.S. 813, 49 S.Ct. 256, 73 L.Ed. 972 (1929).
Clement indicated that the Department merely asked it "to propose reentry standards that will provide reasonable assurance of safety for 10- and 11-year-old fieldworkers engaged in the hand harvesting of potatoes and strawberries." Clement Final Report, J.A. Vol. B at 5 (emphasis added). This assignment itself departed from the statutory requirement of "objective data ... that ... [t]he level and type of pesticides and other chemicals used would not have an adverse effect on the health or well-being" of the 10- and 11-year-old field-workers. 29 U.S.C.A. § 213(c)(4)(A), (c)(4)(A)(iii) (1979) (emphasis added).
In addition, EPA staff apparently found fault with the Clement reports' methodology. The Department of Labor received a letter including EPA staff criticisms that 1) both the EPA adult standards and Clement standards for children confused the risk of dermal and inhalation with the risk of chronic ingestion; and 2) the Clement studies did not address the pesticides generally applied just before potato harvests. Letter from Edwin L. Johnson, Assistant Deputy Administrator for Pesticide Programs, EPA, to Donald E. Elisburg, Assistant Secretary for Employment Standards, Department of Labor (Sept. 26, 1978). Plaintiffs' Exhibit 9 in Support of Plaintiffs' Motion for a Preliminary Injunction, reprinted in J.A. Vol. A at A92.
The time constraints were severe. The Department first contracted with Clement on June 1978. Clement submitted final reports less than two months later, on August 7, 1978, in time for the September potato harvest. The Department adopted the Clement recommendations on August 18, 1978. The Department next contracted with Clement on March 19, 1979, just before the spring strawberry harvest season. Clement issued one report on March 30, 1979, while recommendations were adopted by the agency on April 10, 1979. Then on April 20, 1979, Clement issued another report, followed by two more Department modifications of its regulations on April 24, and May 16, 1979. Clement issued its final, summary report two days later, on May 18, 1979.
The government nevertheless argues that Congress intended to invest discretion in the Secretary because the Senator proposing the added language explained it directed the Secretary to "give appropriate consideration to the problem of chemicals." Gov't Br. at 27 n.16 (quoting 123 Cong.Rec. S16635 (daily ed. Oct. 7, 1977) (remarks of Sen. Williams)). The plaintiffs correct this misconception in noting that the same Senator supported placing stringent conditions on the waivers "to insure that young children will not be exposed to the hazardous effects of pesticides and herbicides." Plaintiffs' Br. at 26 (quoting 123 Cong.Rec. S16626 (daily ed. Oct. 7, 1977) (remarks of Sen. Williams)).
Community Nutrition Institute v. Butz, 420 F.Supp. 751 (D.D.C.1976). Where the knowledge base for rules is uncertain, public confidence is possible only if the procedures followed promote full and open debate.
At oral argument, the Department's counsel indicated that the EPA was entering an agreement to assist in developing pesticide exposure standards for 10 and 11 year olds.