KOZINSKI, Circuit Judge:
Farmers and food processors in the Pacific Northwest brought this lawsuit to enjoin the Environmental Protection Agency from suspending registrations of the pesticide dinoseb (2-sec-butyl-4, 6-dinitrophenol). Plaintiffs use products containing dinoseb or its salts in the cultivation of green peas, snap beans, cucurbits and caneberries.
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C.A. §§ 136-136y (1980 & Supp.1987), establishes an elaborate framework for the regulation of pesticide use in the United States. No pesticide may be sold or distributed unless it is registered with the EPA. FIFRA §§ 3(a), 12(a)(1)(A), 7 U.S.C.A. §§ 136a(a), 136j(a)(1)(A). In order to register a pesticide, an applicant, who may be a manufacturer or user of the product, must demonstrate with sufficient scientific evidence that, "when used in accordance with widespread and commonly recognized practice[, the pesticide] will not generally cause unreasonable adverse effects on the environment." FIFRA § 3(c)(5)(D), 7 U.S.C.A. § 136a(c)(5)(D). After a pesticide has been registered, the EPA Administrator must issue a notice of his intent to cancel its registration or change its classification "`whenever there is a substantial question about the safety of a registered pesticide.'" Environmental Defense Fund, Inc. v. EPA, 510 F.2d 1292, 1296 n. 4 (D.C.Cir.1975) (quoting Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 594 (D.C.Cir.1971)); see FIFRA § 6(b), 7 U.S.C.A. § 136d(b).
Dinoseb is a pesticide registered for use as an herbicide, insecticide, fungicide and desiccant, and has been used in the United States for nearly forty years. It is applied primarily as a contact herbicide to control broadleaf weeds and as a desiccant on caneberries to suppress growth that would obstruct harvesting. Decision and Emergency Order Suspending the Registrations of All Pesticide Products Containing Dinoseb, 51 Fed.Reg. 36634, 36635 (EPA Oct. 14, 1986) [hereinafter Emergency Order]; Intent to Cancel and Deny All Registrations for Pesticide Products Containing Dinoseb, 51 Fed.Reg. 36650, 36657-58 (EPA Oct. 14, 1986) [hereinafter Notice of Intent]. In October 1986 there were nearly three hundred federal registrations for pesticides containing dinoseb or its salts.
In the spring of 1986, the EPA developed doubts about the safety of dinoseb. Preliminary studies showed that dinoseb may cause serious health risks to persons exposed to it, including sterility in men and birth defects in the unborn children of pregnant women. Emergency Order, 51 Fed.Reg. at 36636-38. In October 1986, the EPA began proceedings to cancel all dinoseb registrations. See Notice of Intent, 51 Fed.Reg. at 36650. On October 7, the Administrator issued an emergency suspension order under section 6(c)(3) of FIFRA, 7 U.S.C.A. § 136d(c)(3), prohibiting the sale, distribution and use of dinoseb pending the completion of the cancellation proceedings. Emergency Order, 51 Fed.Reg. at 36634, 36648.
Plaintiffs, as nonregistrant users of dinoseb, are not permitted by FIFRA to initiate an expedited administrative hearing on the suspension order.
On April 3, 1987, with the growing season upon them, plaintiffs rushed into district court seeking relief from the EPA's suspension order. The growers' argument was quite straightforward: They simply could not grow their crops without dinoseb. Unlike farmers in other parts of the country, farmers in the Northwest have no substitutes for dinoseb. Climatic conditions and the prevalence of certain pests, black nightshade in particular, make dinoseb the only effective pesticide available on the market. For example, the farmers argued, without dinoseb there would be no caneberry crop in the Pacific Northwest, where 95 percent of the nation's commercial caneberry crop is grown. Potential crops losses would amount to $39.2 million this year. See Love v. Thomas, 668 F.Supp. 1443, 1450 (D.Or.1987); 2 Reporter's Transcript (RT) at 257.
On April 15, 1987, after a two-day hearing, the district court asserted jurisdiction on the basis of section 6(c)(4) of FIFRA, 7 U.S.C.A. § 136d(c)(4). See 668 F.Supp. at 1446, 1447. It then preliminarily enjoined enforcement of the suspension order pending completion of the EPA's cancellation proceedings, and allowed use of dinoseb subject to twelve conditions, see pp. 1074-75 infra, patterning the injunction after the EPA's modification of its suspension order as to certain other crops, see p. 1062 n. 7 supra. The court permitted limited sales of dinoseb to growers of certain crops; prohibited uncertified applicators from using the pesticide; barred "[w]omen of child-bearing age, i.e., under the age of 45," from "any aspect of dinoseb application"; restricted the manner and extent of application of dinoseb to crops; and set standards for applicator clothing and exposure. See Love v. Thomas, No. 87-343-RE, at 2-4 (D.Or. April 15, 1987) [hereinafter Preliminary Injunction], quoted at pp. 1074-75 infra.
The Parties and Their Contentions
The EPA's appeal is supported by certain intervenors, including various labor unions that represent agricultural workers ("the unions"). Plaintiffs defend the district court's judgment with the support of the State of Oregon, which intervened below.
The EPA argues that the district court lacked jurisdiction to review the suspension order. On the merits, the EPA argues that the court erred in invalidating the suspension order and enjoining enforcement. The unions support the EPA and in addition argue that the district court's order denied farmworkers equal protection because it treated men and women disparately.
The first question we must address is that of jurisdiction.
Because the expedited hearing may take a month or more,
The statute provides for review in the court of appeals of a suspension order issued following a hearing, notwithstanding the fact that the cancellation proceedings may be continuing before the agency. FIFRA § 6(c)(4), 7 U.S.C.A. § 136d(c)(4). As to "[a]ny order of suspension entered prior to a hearing," the statute provides for "immediate review in an action by the registrant or other interested person with the concurrence of the registrant in an appropriate district court." Id.
The EPA argues that judicial review is barred by section 6(c)(2), which provides, in what the EPA contends are the plainest possible terms, that if the registrants do not request a hearing, the suspension order becomes final and "shall not be reviewable by a court." The district court rejected this contention, noting that this is not a case where the registrants failed to request
Plaintiffs do not rely on the district court's rationale. Instead, they point to the language of section 6(c)(4), which deals expressly with judicial review.
This is such a case. On the one hand, Congress provided for immediate judicial review of emergency suspension orders. FIFRA § 6(c)(4), 7 U.S.C.A. § 136d(c)(4). On the other, it provided in the most categorical terms that judicial review of suspension orders is precluded where the registrant waives its rights to an administrative hearing. FIFRA § 6(c)(2), 7 U.S.C.A. § 136(c)(2). The conflict is exacerbated somewhat by the fact that judicial review of an emergency suspension order may be sought by any "interested person" with the concurrence of a registrant, while administrative review may be requested only by the registrant itself. If possible, we must give these apparently conflicting provisions a sensible reading that avoids redundancy or surplusage.
We find such a construction possible. FIFRA § 6(c)(4) authorizes the district courts to review EPA orders entered "prior to a hearing." This phrase potentially embraces two categories of suspension orders: ordinary orders issued after registrants waive a hearing, and emergency orders issued before an opportunity therefor. Since ordinary orders entered after waiver of a hearing are made unreviewable under subsection (c)(2), subsection (c)(4) must authorize district courts to review emergency suspension orders, if it is to have any meaning at all.
The EPA does not seriously dispute this construction. It argues, however, that the district court may review emergency suspension orders under subsection (c)(4) only so long as they are in fact emergency suspension orders, that is, pending an opportunity for an agency hearing. If a hearing is held, the EPA's argument continues, the
FIFRA, however, provides for the issuance of a final suspension order only in those cases where there is an administrative hearing. There is no provision for entering a separate final suspension order if no hearing is held after issuance of an emergency order, and none in fact was entered in this case.
The EPA also argues that subsection (c)(3), which provides for the issuance of emergency suspension orders, by its terms incorporates subsection (c)(2), including the provision prohibiting judicial review where no registrant requests a hearing. However, the language of subsection (c)(2) indicates that this prohibition against judicial review applies only to those situations where the agency has given notice of its intent to issue a non-emergency suspension order: "If no request for a hearing is submitted to the Agency within five days of the registrant's receipt of the notification provided for by paragraph (1), the suspension order may be issued and shall take effect and shall not be reviewable by a court." FIFRA § 6(c)(2), 7 U.S.C.A. § 136d(c)(2) (emphasis added). In the emergency case, the suspension order has already issued and taken effect before any notice to the registrants and opportunity for a hearing. This first sentence of subsection (c)(2), unlike the other provisions of that subsection which concern hearing procedures, simply does not make sense in the emergency context and must therefore be limited to ordinary suspension orders issued after notice. Contra Nagel, 666 F.Supp. at 1007-08 (finding no jurisdiction to hear Michigan gladiolus growers' challenge to dinoseb suspension order).
The EPA's argument that the district courts' jurisdiction expires with waiver of a hearing also does not fully comport with the language or drafting history of the provision. Subsection (c)(4) authorizes the district court to enter a stay of the order "pending the Administrator's final decision with respect to cancellation or change in classification." FIFRA § 6(c)(4), 7 U.S.C.A. § 136d(c)(4). Had Congress meant for the district court to act only until administrative review was waived or concluded, the statute would have so provided. In fact, the Senate Agriculture and Forestry Committee reported out a bill providing precisely that: "The effect of any order of the court will be only to stay the effectiveness of the suspension order, pending hearing before the Administrator." S.Rep. No. 838, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Admin.News 3993, 4068. That provision was amended to the current form by the conference committee. See Conf.Rep. No. 1540, reprinted in 1972 U.S.Code Cong. & Admin.News 4130, 4132-33. That Congress gave the district court authority to stay suspension orders long after any administrative hearing on suspension, up to the time when the EPA has ruled on the cancellation or reclassification, strongly suggests that the district court's jurisdiction is not limited in the fashion suggested by the EPA.
We see one final anomaly in the EPA's position, albeit a minor one. Subsection (c)(4) provides that the district court action "may be maintained simultaneously with any administrative review proceeding under
We recognize that this issue is far from clear-cut. The EPA's position is not implausible and, quite frankly, neither side advances an entirely satisfactory construction of a statute that obviously was the product of some controversy and considerable compromise. The courts have long recognized, however, a presumption in favor of judicial review of administrative actions. See Block v. Community Nutrition Inst., 467 U.S. 340, 350-51, 104 S.Ct. 2450, 2456-57, 81 L.Ed.2d 270 (1984) (presumption only overcome when "the congressional intent to preclude judicial review is `fairly discernible in the statutory scheme'"); Ruff v. Hodel, 770 F.2d 839, 840 (9th Cir.1985) ("[t]he bar to judicial review ... requires a `persuasive reason to believe' that Congress intended to preclude judicial review") (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967)); Moapa Band of Paiute Indians v. Department of Interior, 747 F.2d 563, 565 (9th Cir.1984) ("[p]reclusion of judicial review is not lightly inferred, and usually will not be found absent a clear command of the statute"). Moreover, we construe prohibitions against judicial review narrowly. Cf. Wallace v. Christensen, 802 F.2d 1539 (9th Cir.1986) (en banc); Moapa Band, 747 F.2d at 565. In light of these considerations, we find plaintiffs' interpretation the most plausible, and hold that the district court had jurisdiction to review the EPA's suspension order.
Subsection (c)(4) provides that an emergency suspension order shall be reviewable by the district court "solely to determine whether the order of suspension was arbitrary, capricious or an abuse of discretion, or whether the order was issued in accordance with procedures established by law." We review the district court's legal determinations de novo and its factual findings for clear error. United States v. McConney, 728 F.2d 1195, 1200-01 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). On the question whether an injunction was properly issued, once the facts and law are established, we review for abuse of discretion. Colorado River Indian Tribes v. Town of Parker, 776 F.2d 846, 849 (9th Cir.1985).
We have recognized, however, certain exceptions to this general rule. The court may find it necessary to review additional material to explain the basis of the agency's action and the factors the agency considered. Friends of the Earth, 800 F.2d at 829; Asarco, Inc. v. EPA, 616 F.2d 1153, 1159-60 (9th Cir.1980). Moreover, the court may consider, particularly in highly technical areas, substantive evidence going to the merits of the agency's action where such evidence is necessary as background to determine the sufficiency of the agency's consideration. Asarco, 616 F.2d at 1160. Nonetheless, the court may not weigh the evidence to determine the correctness or wisdom of the agency's decision. Id. at 1160-61.
We therefore conclude that the district court was well within its authority in considering evidence outside the administrative record. The evidence it considered was precisely of the type that it could properly take into account in determining whether the agency acted arbitrarily or in a manner inconsistent with the statute. Moreover, the district judge carefully limited the scope of the inquiry, noting that, "[i]n considering the evidence presented outside the administrative record, I did not question the scientific merit of the EPA's decision.... Instead, I was concerned that the EPA had not considered all relevant factors...." 668 F.Supp. at 1448.
First, the court heard testimony from two EPA officials: Dr. James Lamb, Special Assistant to Assistant Administrator for Pesticides and Toxic Substances; and Roger Holtorf, an economist with the Economic Analysis Branch of the Benefits and Use Division of the Office of Pesticides Programs. Holtorf, the principal EPA witness, was a team leader for the dinoseb cancellation proceedings and was involved in providing information on the economic consequences of dinoseb for the suspension hearing. 2 RT at 188, 190. The district court first carefully determined that Holtorf was intimately familiar with the evaluation process carried out by the EPA. Id. at 192-93. Holtorf then testified about the information considered by the EPA on the effects of suspension and the extent of its investigation and evaluation of these effects on plaintiffs' crops. In the district court's judgment, such evidence was necessary in light of plaintiffs' contention that the EPA's fact-finding procedures were inadequate. This testimony was properly admitted as evidence necessary to explain the basis for the agency action. See Asarco, 616 F.2d at 1159-60.
Second, the district court considered evidence developed or brought to the attention of the EPA after the issuance of the suspension order, evidence pertaining to the relative efficacy of alternative pesticides in the Pacific Northwest and potential costs of the suspension. Much of this evidence was developed during plaintiffs' subpart D proceeding or in the course of the EPA's reconsideration as to other crops. See p. 1062 n. 7 supra. The court reviewed the evidence not in order to judge whether the EPA properly weighed the costs and benefits, but only to determine whether it considered them at all. So limited, the court's consideration of evidence was entirely proper. See Asarco, 616 F.2d at 1160. We turn therefore to the merits of the district court's decision.
The EPA admitted in its October 14, 1986, Notice of Intent that "[f]or some ... sites, such as green peas, snap beans, caneberries, and hops, the extent of economic impacts is uncertain." 51 Fed.Reg. at 36656. Based on this admission and other evidence, the district court found that "[b]ecause of the way in which the EPA gathered information, the impact of a ban on dinoseb on the northwest was treated in a cursory, unacceptable fashion." 668 F.Supp. at 1449. While concluding that dinoseb's potential dangers were properly substantiated, id. at 1448, the district court held that "the EPA did not consider all relevant factors and, hence, made a clear error of judgment resulting in [a] finding that their entry of the emergency suspension order was arbitrary and capricious." Id. at 1448-49.
After a careful review of the administrative record and the supplemental testimony before the district court, we must agree. The EPA's evaluation of the relevant factors under FIFRA was incomplete and rushed and, under the circumstances of this case, simply not adequate to justify the emergency suspension of plaintiffs' use of dinoseb.
First, the EPA gave itself insufficient time to comply with the statutory requirement that it balance risks and benefits. The EPA became especially concerned about the hazards of dinoseb in late June of 1986 when it received two studies from registrants indicating environmental risks. 1 RT at 144-45, 147. Around August 1, 1986, it ordered its Benefits and Use Division to prepare an evaluation of dinoseb, including production and usage information, a biological assessment and an economic impact assessment. 2 RT at 190, 193, 214. It established a September 1 deadline, which left what EPA economist Holtorf characterized as "a very short time frame." Id. at 190-91. The division was given only two weeks within which to evaluate nearly one hundred registered "sites," or crops, listed on dinoseb labels. 1 RT at 126; 2 RT at 197. As Holtorf testified, "roughly a couple of weeks is about all total that we had to evaluate this; and the staff available for evaluation, they were fully employed with other projects." 2 RT at 207.
Given this tight schedule, the EPA personnel responsible for evaluating the benefits of dinoseb never quite got around to studying plaintiffs' crops. The agency's standard methodology called for the staff to rank the various sites either by total acreage treated or by total pounds of dinoseb applied. With the information at hand, the EPA staff identified roughly 15 sites. 2 RT at 197. Starting with the largest crops, soybeans, peanuts and potatoes, the staff was supposed to work its way down the list until no other usages could be identified. Id. at 197, 206. However, by the sixth and seventh sites, green peas and snap beans (each of which accounted for approximately 2 percent of total dinoseb usage in the United States, id. at 197), the EPA had to stop because it ran out of staff and resources. As economist Holtorf testified, "we flat ran out of resources when we got about halfway down the list which would be roughly peas and beans.... We have a relatively small staff in relation to our work load, Your Honor. The Federal has been somewhat on a slide in terms of resources over the last few years." 2 RT at 206-07. The EPA thus never reached
As a result of the incomplete study process, the district court found, the EPA used "scanty" data with respect to those crops, information "inconsistent with or contradicted by data readily available to, but not considered by, the EPA." 668 F.Supp. at 1449. For example, a principal document in the administrative record, relied upon by the decision-makers, was a study titled "Dinoseb: Summary of Biological and Economic Impacts of a Suspension/Cancellation." (EPA Aug.1986) (Plaintiffs' Exh. 1) [hereinafter August Summary]; see 668 F.Supp. at 1449-50. That document, dated August 1986 but attached to a cover memorandum dated September 2, 1986, was unfortunately both flawed and incomplete.
The paucity of the information in the possession of the EPA when it summarily suspended use of dinoseb in the Northwest is disturbingly revealed by this document. The report states at the outset that, although the Benefits and Use Division usually considers information from "all possible data sources" during cancellation proceedings,
August Summary at 1-2.
In addition to limited data, the EPA conducted only a cursory evaluation of the availability of alternative pesticides and the consequent economic impact of suspension; it gave no particular attention to the Northwest at all.
Holtorf testified that the EPA never completed a "full efficacy evaluation" for peas and beans. 2 RT at 206. At the time of the suspension, the EPA was thus "very uncertain as to the levels of these alternatives" for dinoseb and "because of the uncertainties, [the EPA staff was] a little reluctant to estimate exact yield losses that could result." Id. at 207; see also 1 RT at 131-32. The EPA also had no evidence of what effect dinoseb suspension would have on caneberries and made no effort to find any. 1 RT at 133. As a result, although it had studied potatoes and peanuts in greater depth, the EPA was not able to evaluate the economic effects of dinoseb suspension on growers, regionally or nationally, "for some of the lesser used sites," including green peas and snap beans. 2 RT at 210.
In its own defense, the EPA argues that it ordered suspension on a nationwide basis, and was entitled to rely on nationwide findings as to alternatives and economic impact. For example, it found that only about a third of the nation's green pea acreage and 20 percent of the snap bean acreage was treated with dinoseb. 2 RT at 198-99, 201. It therefore extrapolated the costs of suspension likely to be suffered by pea and bean farmers in such states as Wisconsin to all parts of the country and concluded there "would be a minor effect on a national basis." 2 RT at 208 (green peas); id. at 209, 241 (snap beans). However, as the district court pointed out, there was no pressing need to enter an immediate nationwide ban on dinoseb: "The agency did have the power to suspend registration on a crop by crop and/or area by area basis." 668 F.Supp. at 1449. The suspension order was entered in October while the spraying season for the crops here at issue was not until the following March or April, some six months later. See Dinoseb: A Summary of Biological and Economic Impacts of an Emergency Suspension, table 1 (EPA Aug.1986) (Plaintiffs' Exh. 63). The EPA therefore had ample time to give the Northwest crops separate and careful attention.
By extrapolating data from other regions, the EPA also did not consider, as it should have, the particular economic circumstances of farmers in the Pacific Northwest. For example, 95 percent of the commercial raspberry crop is grown in that region, and dinoseb is the only herbicide known to be effective as a chemical pruning agent in suppressing the primocane stage of raspberry growth; this "cane burning" increases crop yield and permits mechanical harvesting. Kosesan Letter at 3-4; Schwisow Letter (Plaintiffs' Exh. 43) at 4 (raspberry yield increases of 45 to 90 percent); 1 RT at 50-51, 116-17. The industry faces strong competition from Canadian producers across the Washington border, where dinoseb use is permitted. Without dinoseb, the entire American raspberry crop might prove unprofitable. See Schwisow Letter (Plaintiffs' Exh. 43) at 4; 1 RT at 90-91.
In addition, specific crop effects, such as the loss of various caneberries and the contamination of green peas by black nightshade, could have tremendous secondary effects in the Northwest, none of which the EPA considered. As the district court found, "[c]rop losses of this magnitude will result in business failures not only for farmers, but for the food processing industry as well." 668 F.Supp. at 1451. These losses were not included in the $39.2 million estimate, which covered only the losses to growers. Id. Plaintiffs presented testimony that food processors and other buyers come to the Northwest for the pea and bean crops, and then purchase a fuller line of vegetables while there. 1 RT at 86-87. Should the caneberry, pea or bean crops fail or prove unmarketable because of the suspension, the effects might ripple throughout the Northwest agricultural sector: Buyers would establish sources of supply elsewhere; processors might find it unprofitable to maintain plants in the region without those key crops; producers of other, ancillary, crops may be unable to sell their harvests as well. See 668 F.Supp. at 1451. The effect of crop losses growing from discontinued use of dinoseb thus could seriously harm the entire regional economy.
With all due respect to the EPA and its overworked staff, such insensitivity to the local economic problems caused by its decision is unbecoming and inappropriate. Crop losses of over $39 million may look like small potatoes from Washington, D.C., but, as the district court found, such losses would cause very serious economic hardships to the people of the Northwest who would have to bear them. There may well be very minor uses that are of economically trivial importance and therefore need not be separately studied before a suspension order is entered. See, e.g., Environmental Defense Fund, 510 F.2d at 1303 (challenged pesticide "is used on less than 5 percent of the total citrus acreage, and the ALJ noted that much of that use was a kind of `just in case' insurance, applied even in the absence of knowledge that the pest exists in the pertinent grove"). The effects in the Northwest documented here surely do not fall into that category. As the district court noted:
668 F.Supp. at 1451. There is ample support in the record for the district court's conclusion. See p. 1072 supra.
The EPA's inattention to the Northwest's special problems might nevertheless have been justified if there had been a genuine emergency that necessitated an immediate suspension of all dinoseb uses and foreclosed consideration of the problems faced by different regions of the country. However, the record does not document any particularly compelling circumstances requiring the EPA's haste. In order to issue a suspension order without notice and prior opportunity for a hearing, the EPA must first find that there is an emergency that justifies immediate suspension. FIFRA § 6(c)(3), 7 U.S.C.A.
The Administrator estimated that it would take four months to complete a suspension hearing; Holtorf testified that the economic impact evaluation and comparative performance review for the remaining crops would have been performed between September 1986 and March 1987. 2 RT at 235; see also 1 RT at 156 (Lamb testimony). The EPA, however, neither used that time to compile evidence justifying an emergency order, nor took advantage of the winter hiatus in dinoseb application to hold a suspension hearing. By suspending first and asking questions later — if at all — the EPA acted without due regard to the commands of FIFRA. We therefore agree with the district court that the emergency suspension order was arbitrary and capricious, an abuse of discretion, and was not issued in accordance with the provisions of FIFRA.
Having found the EPA's suspension order to be arbitrary, capricious and an abuse of discretion, we turn to the district court's grant of relief to plaintiffs. As noted above, the district court did not merely stay the suspension order. It handed down a five-page preliminary injunction permitting use of dinoseb on the crops at issue in Oregon, Washington and Idaho. The court specified the conditions for such use:
Preliminary Injunction at 2-4. As to the spraying of green and dry peas, chickpeas, lentils, snap beans and cucurbits, the court added two "additional conditions":
Id. at 4. The court further specified that caneberries could only be sprayed during conditions that would "prevent any drift of the herbicide," and that "it may be applied by open tractors equipped as stated in paragraph 7 above, if operators wear chemically resistant disposable overalls of the type specified above." Id. Last, the court ordered Oregon to enforce these conditions, and applied the order to the two other states if they agreed to enforce the conditions. Id. at 4-5.
Such a detailed and carefully crafted order — balancing the rights and interests of the affected parties — would normally be entirely appropriate for a court sitting in equity.
Because the court exercised its discretion under the mistaken impression that it could tailor an injunction so as to limit the pesticide's use, we cannot be sure that it would have been willing to allow the unrestricted use of dinoseb. We therefore vacate the district court's injunction and remand for a redetermination of whether to stay the EPA's suspension order.
The EPA is not without recourse. If the district court does stay the suspension, and even if does not, the EPA may initiate an expedited suspension hearing in which plaintiffs and other interested parties may participate. Or, the EPA may itself modify its suspension order, much as it did with respect to dry peas and lentils, in response to the pending subpart D petition. The district court would, of course, take any such modification into account in deciding whether to issue the stay, or, once issued, in deciding whether to keep the stay in effect. See Fed.R.Civ.P. 60(b)(5)-(6); Nicacio v. United States Immigration & Naturalization Serv., 797 F.2d 700, 706 (9th Cir.1985) ("a court which issues an injunction retains jurisdiction to modify the terms of the injunction if a change in circumstances so requires"); 11 C. Wright & A. Miller, Federal Practice & Procedure § 2961, at 558-600 (1973). Thus, while the district court may, under FIFRA, suspend the EPA's order until completion of cancellation proceedings, this does not necessarily mean that dinoseb will be freely usable in the Northwest during that entire period. We leave these matters for the court and parties to sort out on remand.
We affirm the district court's ruling that the EPA order was arbitrary and capricious. We vacate its order staying the suspension, and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
NORRIS, Circuit Judge, dissenting:
Under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136-136y, pesticides may not be distributed or sold unless they are registered with the Environmental Protection Agency (EPA). 7 U.S.C. § 136a(a). Section 6(b) authorizes the Administrator of the EPA to give notice of his intent to cancel the registration of a pesticide
7 U.S.C. § 136d(b).
In October 1986, the Administrator gave notice of his intent to cancel registration of products containing the pesticide dinoseb. Section 6(b) gives any person adversely affected by the notice the right to request a hearing on the proposed cancellation. If no hearing is requested, the cancellation becomes final after 30 days. 7 U.S.C. § 136d(b). In this case, six registrants
In addition to giving the cancellation notice, the Administrator issued an emergency order immediately suspending the registration of all dinoseb products. He is authorized to do so if he determines that "action is necessary to prevent an imminent hazard during the time required for cancellation ... proceedings ...," 7 U.S.C. § 136d(c)(1), and "that an emergency exists that does not permit him to hold a hearing before suspending [the registration]," 7 U.S.C. § 136d(c)(3). The question presented by this appeal is whether the district court had jurisdiction to review that emergency suspension order. As I read the statute, judicial review of the emergency order is foreclosed because of the failure of any registrant to request an expedited hearing on the question whether an imminent hazard exists.
The statute authorizes the Administrator to issue either an ordinary suspension order or an emergency suspension order if he determines that action is necessary to prevent "an imminent hazard during the time required for cancellation." 7 U.S.C. § 136d(c)(1). The critical distinction is that an emergency suspension order goes into effect immediately, whereas an ordinary suspension order cannot go into effect until after an expedited hearing on the question of "imminent hazard," provided such a hearing is requested within five days after the Administrator gives notice of his intent
Section 6(c)(2) is explicitly made applicable to emergency suspension orders by section 6(c)(3). 7 U.S.C. § 136d(c)(3). Section 6(c)(3) states that when an emergency suspension order is issued, "paragraph (2) shall apply" subject to two exceptions which are not relevant to the question of whether an emergency suspension order is judicially reviewable in the absence of a timely request for an expedited hearing.
The majority nonetheless holds that an emergency suspension order is judicially reviewable even in the absence of a timely request for an expedited hearing. The majority concedes that judicial review of an ordinary suspension order is foreclosed when no hearing is requested. See maj. op. at 1063. But the majority gleans from the statute a distinction between ordinary and emergency suspension orders where none exists. As I understand the majority's analysis, the language of section 6(c)(3) that "paragraph (2) shall apply" in the case of an emergency suspension order was not intended by Congress to incorporate the first sentence of section 6(c)(2) which, to repeat, provides: "If no request for a hearing is submitted to the Agency within five days of the registrant's receipt of the notification provided for by paragraph (1), the suspension order may be issued and shall take effect and shall not be reviewable by a court." 7 U.S.C. § 136d(c)(2). The majority reasons that this sentence is not incorporated into section 6(c)(3) because "shall take effect" cannot apply to an emergency suspension order which is, by definition, already in effect. See maj. op. at 1066. I find this to be a remarkably tortured and hypertechnical reading of the statute.
Congress made two explicit exceptions to the language in section 6(c)(3) which makes section 6(c)(2) applicable to emergency suspension orders. See 7 U.S.C. § 136d(c)(3)(i) and (ii). The majority effectively amends section 6(c)(3) to add a third exception as follows:
The effect of this judicially created exception is that when the Administrator issues an emergency suspension order, the order is judicially reviewable even if no request for an expedited hearing is requested within five days. This added exception is particularly odd because the language of the first exception, section 6(c)(3)(i), clearly refers to a portion of the first sentence of section 6(c)(2) without writing the entire sentence out of section 6(c)(3).
Furthermore, the majority suggests no reason why Congress would make a distinction between the judicial reviewability of ordinary and emergency suspension orders. I suggest none exists. For our purposes, the only relevant difference between the
The majority's reliance on the language of section 6(c)(4)
Although I agree with the majority that an "order of suspension entered prior to a hearing" can only refer to an emergency suspension order, this language in section 6(c)(4) cannot possibly mean that Congress intended to permit judicial review of an emergency suspension order when an expedited hearing has not been requested. See maj. op. at 1065. There can be no such thing as an order pending an expedited hearing unless there has been a timely request for such a hearing within five days. In the absence of a timely request for an expedited hearing, the order becomes final, there is no expedited hearing, and the order is not "entered prior to a hearing." Thus an order can be an order "entered prior to a hearing" only if an expedited hearing is requested. Because an expedited hearing was never requested in this case, section 6(c)(4) simply does not apply. Accord Nagel, 666 F.Supp. at 1006-07; Dow Chemical Co., 469 F.Supp. at 899 (judicial review of emergency suspension order under section 6(c)(4) prior to expedited hearing which had been requested by plaintiffs).
The bottom line in this case shows that the majority's reading of the statute is bizarre. Contrary to the clear intent of Congress, which has written a statute which speaks in terms of suspension orders becoming final in five days if no registrant requests an expedited hearing, the majority allows nonregistrants to seek judicial review of an emergency suspension order
Producers of dry peas, chickpeas and lentils in the Palouse region of the Pacific Northwest petitioned for reconsideration. On February 11, 1987, the Administrator granted the subpart D hearing requests as to those three crops grown in Idaho and Washington. See Notice of Hearing, 52 Fed.Reg. 4963. On March 30, the Administrator issued his Decision and Final Order Modifying Final Suspension of Pesticide Products Which Contain Dinoseb, and permitted application of dinoseb to those crops in Washington and Idaho with certain restrictions. On April 3, he granted the subpart D hearing request as to those same crops in Oregon. See Notice of Hearing Concerning Application to Modify the Final Suspension Order for Pesticide Products Containing Dinoseb, 52 Fed.Reg. 11333, 11335 (EPA April 8, 1987).
Letter from Peter R. Steenland, Jr. to Betty Parshall (Aug. 7, 1987) (emphasis original).
Memorandum from Dr. Arnold L. Aspelin to Janet Auerbach at 1 (Sept. 29, 1986) (Plaintiffs' Exh. 65).
In table 3, which sets forth the "Summary of Biological and Economic Impacts of Suspension/Cancellation of Dinoseb, by Site," the yield effect for snap beans is listed as "Unknown," the consumer effect "Uncertain." For green peas, the yield effects are "Possible; extent unknown," and the consumer price effect is "Possible; expected to be < 1%," despite ignorance of expected losses. For caneberries, the yield effects and consumer price impact are respectively "Unknown" and "Uncertain." Once again, there is no specific listing for cucurbits.
668 F.Supp. at 1450.
2 RT at 208.
7 U.S.C. § 136d(c)(3)
7 U.S.C. § 136d(c)(4).