Quote of the moment: 1971, U.S. Court of Appeals for the District of Columbia orders a review of the safety of DDT

November 23, 2010

Excerpted from ENVIRONMENTAL DEFENSE FUND, INCORPORATED et al., Petitioners, v. William D. RUCKELSHAUS, Administrator of the Environmental Protection Agency & Environmental Protection Agency, Respondents, Izaak Walton League of America, Montrose Chemical Corporation of California, State of New York, Intervenors, 439 F.2d 584 (1971); Chief Judge David L. Bazelon wrote the decision.

This is a petition for review of an order of the Secretary of Agriculture,1 refusing to suspend the federal registration of the pesticide DDT or to commence the formal administrative procedures that could terminate that registration.

Born in Wisconsin, David L. Bazelon grew up in Chicago and practiced law there. In 1949, President Truman named him to the United States Court of Appeals for the District of Columbia Circuit, often described as the country's most influential court, next to the Supreme Court. At 40, he was the youngest judge ever appointed to that court. From 1962-1978 he served as chief judge, retiring in 1986 as a senior judge.

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We conclude that the order was based on an incorrect interpretation of the controlling statute, and accordingly remand the case for further proceedings.  In this case the Secretary has made a number of findings with respect to DDT. On the basis of the available scientific evidence he has concluded that (1) DDT in large doses has produced cancer in test animals and various injuries in man, but in small doses its effect on man is unknown; (2) DDT is toxic to certain birds, bees, and fish, but there is no evidence of harm to the vast majority of species of nontarget organisms; (3) DDT has important beneficial uses in connection with disease control and protection of various crops. These and other findings led the Secretary to conclude ‘that the use of DDT should continue to be reduced in an orderly, practicable manner which will not deprive mankind of uses which are essential to the public health and welfare. To this end there should be continuation of the comprehensive study of essentiality of particular uses and evaluations of potential substitutes.’38

There is no reason, however, for that study to be conducted outside the procedures provided by statute. The Secretary may, of course, conduct a reasonable preliminary investigation before taking action under the statute. Indeed, the statute expressly authorizes him to consult a scientific advisory committee, apart from the committee that may be appointed after the issuance of a cancellation notice.39 But when, as in this case, he reaches the conclusion that there is a substantial question about the safety of a registered item, he is obliged to initiate the statutory procedure that results in referring the matter first to a scientific advisory committee and then to a public hearing. We recognize, of course, that one important function of that procedure is to afford the registrant an opportunity to challenge the initial decision of the Secretary. But the hearing, in particular, serves other functions as well. Public hearings bring the public into the decision-making process, and create a record that facilitates judicial review.40 If hearings are held only after the Secretary is convinced beyond a doubt that cancellation is necessary, then they will be held too seldom and too late in the process to serve either of those functions effectively.

The Secretary’s statement in this case makes it plain that he found a substantial question concerning the safety of DDT, which in his view warranted further study. Since we have concluded that that is the standard for the issuance of cancellation notices under the FIFRA, the case must be remanded to the Secretary with instructions to issue notices with respect to the remaining uses of DDT, and thereby commence the administrative process.

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We stand on the threshold of a new era in the history of the long and fruitful collaboration of administrative agencies and reviewing courts. For many years, courts have treated administrative policy decisions with great deference, confining judicial attention primarily to matters of procedure.48 On matters of substance, the courts regularly upheld agency action, with a nod in the direction of the ‘substantial evidence’ test,49 and a bow to the mysteries of administrative expertise.50 Courts occasionally asserted, but less often exercised, the power to set aside agency action on the ground that an impermissible factor had entered into the decision, or a crucial factor had not been considered. Gradually, however, that power has come into more frequent use, and with it, the requirement that administrators articulate the factors on which they base their decisions.51

Strict adherence to that requirement is especially important now that the character of administrative litigation is changing. As a result of expanding doctrines of standing and reviewability,52 and new statutory causes of action,53 courts are increasingly asked to review administrative action that touches on fundamental personal interests in life, health, and liberty. These interests have always had a special claim to judicial protection, in comparison with the economic interests at stake in a ratemaking or licensing proceeding.

To protect these interests from administrative arbitrariness, it is necessary, but not sufficient, to insist on strict judicial scrutiny of administrative action. For judicial review alone can correct only the most egregious abuses. Judicial review must operate to ensure that the administrative process itself will confine and control the exercise of discretion.54 Courts should require administrative officers to articulate the standards and principles that govern their discretionary decisions in as much detail as possible.55 Rules and regulations should be freely formulated by administrators, and revised when necessary.56 Discretionary decisions should more often be supported with findings of fact and reasoned opinions.57 When administrators provide a framework for principled decision-making, the result will be to diminish the importance of judicial review by enhancing the integrity of the administrative process, and to improve the quality of judicial review in those cases where judicial review is sought.

Remanded for further proceedings consistent with this opinion.

(President Nixon’s Secretary of Agriculture Clifford M. Hardin reviewed DDT regulations and decided no further action was required — since 1958, USDA had been reducing and eliminating DDT from use on USDA lands, as was the Department of the Interior.  Environmental Defense Fund sued, arguing more action should have been required.  In a complex decision, the U.S. Court of Appeals for the District of Columbia ordered more study of the issue.  By the time of the decision, the Environmental Protection Agency (EPA) had been established, and EPA Director William D. Ruckelshaus took Hardin’s place as defendant, with EPA assuming USDA’s position as defendant agency.  EPA’s review resulted in a ban on use of DDT on crops in the U.S.)

Some historians and many critics of EPA’s decision to ban DDT from agricultural use in the U.S. fail to acknowledge the importance of this ruling.  Judge Bazelon said that great caution alone is not sufficient on the part of administrators, and he ordered that the evidence against DDT be placed on the public record for public scrutiny.  “Public scrutiny” in this case would mean analysis by scientists, pesticide manufacturers, farming and farm support organizations, health workers, policy makers, and reporters.

On one hand, this decision tends to favor DDT advocates.  Judge Bazelon said the administrator in charge of carrying out FIFRA, the Federal Insecticide, Fungicide and Rodenticide Act, must give advocates of DDT the basis for the ruling: “On the basis of the available scientific evidence he has concluded that (1) DDT in large doses has produced cancer in test animals and various injuries in man, but in small doses its effect on man is unknown; (2) DDT is toxic to certain birds, bees, and fish, but there is no evidence of harm to the vast majority of species of nontarget organisms; (3) DDT has important beneficial uses in connection with disease control and protection of various crops.”

On the other hand, Bazelon’s order means that the significant harms of DDT must  be spelled out in public — so that the administrator’s ruling can be contested if it does not do what FIFRA requires.  In other places in the decision, Judge Bazelon notes that Congress had required, through FIFRA, that a pesticide determined to be uncontrollably dangerous must be taken off the market, under the justification that it was “mislabeled.”  Lower courts had already made that determination on DDT.  Bazelon’s order set the stage to require the administrator to ban DDT as a matter of law — the administrator being  the Secretary of Agriculture originally, or the Director of EPA under the reorganization of the government that created EPA .

Critics of William Ruckelshaus’s decision to ban DDT miss this point of the law.  Under the findings of the nearly year-long hearing in EPA’s administrative law courts, DDT was found to be an uncontrollable poison in the wild.  FIFRA required such a pesticide to have its registration cancelled, with very little wiggle room to make a case for any continued use of the stuff.  Ruckelshaus’s action stopped the immediate shutdown of DDT manufacturing in the U.S.   This proved to be a mixed benefit decision.  While the U.S. benefited financially from export of DDT, that the U.S. exported a chemical banned for most uses inside the U.S. proved to be a sore point in foreign relations with other nations; also most of the manufacturing sites were highly contaminated, so much so that the manufacturers declared bankruptcy rather than stick around to clean them up under the rules of the Superfund which took effect in 1984.  Taxpayer dollars now pay for massive cleanup operations of DDT manufacturing sites in California, Michigan, and Alabama, and other places.

Quote of the moment: Jefferson, public education as the protector of freedom

November 23, 2010

South Elevation of the Rotunda, University of Virginia -- Thomas Jefferson design for the university he founded and shepherded - UVA image

Thomas Jefferson. South Elevation of the Rotunda, begun 1818, completed March 29, 1819. Ink and pencil drawing. Courtesy of the Thomas Jefferson Architectural Drawings, University Archives, Special Collections Department, University of Virginia Library

By far the most important bill in our whole code is that for the diffusion of knowledge among the people.  No other sure foundation can be devised for the preservation of freedom, and happiness.

Jefferson in a letter to his mentor George Wythe, from Paris, August 13, 1786; referring to his Bill for the More General Diffusion of Knowledge, proposed in 1779

Excerpted from The Quotable Jefferson, collected and edited by John Kaminski, Princeton University Press, 2006

Unhappy marriage led to founding of Texas?

November 23, 2010

I’m looking for more photographs of presidents, especially Millard Fillmore and Andrew Johnson at the moment.  Only a tiny handful of photos are available for Fillmore, and generally, there are only three photos of Andrew Johnson.  Are there other photos hidden in archives, or is that really a reflection of how many photos were made of the two men?

The search continues.

While searching the archives at the University of Tennessee, I came across this press release on a wedding invitation to Sam Houston’s first marriage, in Tennessee, when he was governor of that state.  It features a photo of Houston that’s a little rare — and an interesting story.

Houston’s first marriage failed fast and hard.  He was so shaken that he resigned his office as governor of Tennessee, and left for Indian territories.  Eventually he found himself in Texas, and he was the leader of the Texian forces that defeated and captured Mexico’s President Santa Ana, securing independence from Mexico for Texas.  Houston was president of the Texas Republic, and governor of the State of Texas.

What would Texas history be had Houston’s first marriage been happy, and he had stayed in Tennessee?

March 23, 2007

University of Tennessee Special Collections Library acquires rare invitation to Sam Houston’s 1829 wedding

samhouston.jpgThe Special Collections Library at the University of Tennessee recently purchased a copy of an invitation to the sudden January 1829 wedding of then-Tennessee governor Sam Houston and Eliza Allen. This rare item may be only one of its kind.

Aaron Purcell, university archivist, discovered the piece on eBay.com and purchased the invitation on February 14, 2007, just over 178 years after the wedding date. The invitation was kept by descendants of one of the wedding guests for five generations.

Sam Houston is an important figure in Tennessee’s history, serving as governor from 1827-1829 and representing the state in the U.S. House of Representatives from 1823-1827. Born in Lexington, Virginia, in 1793, his family moved to Maryville, Tennessee, in 1806. Houston joined the army in 1813 and fought at the Battle of Horseshoe Bend in 1814. There he caught the attention of Andrew Jackson. Jackson became Houston’s mentor and helped guide his political career.

While governor, Houston briefly courted 18-year-old Eliza Allen, daughter of a wealthy Gallatin, Tennessee, businessman. On January 15, 1829, the couple mailed a handful of invitations to a small January 22nd wedding at the Allen family home. It is one of these few invitations that UT was able to purchase.

invitation.jpgThe invitation UT acquired is addressed to Miss Harriet Roulstone, the daughter of George Roulstone, who in 1791 founded the Knoxville Gazette, the state’s first newspaper.

Shortly after the ceremony, the newlyweds were at odds. After 11 weeks, Eliza Allen left her husband and returned to her family’s home in Gallatin. There are many theories as to why the marriage was so short-lived, but none are substantiated. Allen burned all of her letters regarding the relationship and Houston was reluctant to speak about his brief marriage.

The invitation gives few details about the wedding, but the piece remained in the Roulstone family for many years, tucked in a trunk with other important family papers.

Shortly after his marriage dissolved, Houston resigned his position as governor and fled to Indian Territory. He married a Cherokee woman and became a citizen of the Cherokee Nation. Houston returned to public service in Texas, serving as president of the Republic of Texas, U.S. senator, and making several failed presidential runs. He died in 1863, leaving behind a complex legacy.

“Sam Houston materials are exceedingly rare and expensive,” Purcell said. UT holds only one other Houston item in its collections, a letter to Colonel Ramsey, dated February 1829. Both items are available for research use in the Special Collections Library at 1401 Cumberland Avenue.

About the Special Collections Library
The University of Tennessee Special Collections Library was founded in 1960 and resides in the historic James D. Hoskins Library building. Materials in special collections include manuscripts, books and other rare materials for research use. For more information, contact the library at (865) 974-4480  or visit www.lib.utk.edu/spcoll/.

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