Some living things, such as the insects shown above,  are not generally esteemed by humans.  Those things our society defines as "vermin," "varmints," or one of the other pejorative terms applied to critters that offend or harm us (a changing cast of characters over time and across different societies, we should be aware) are often considered legitimate targets of extermination efforts. At least since Biblical times, insects that feed on human crop plants have been near the top of the list of insect enemies.  The emergence of germ theory in medical science, which identified insects as a possible vector for diseases such as malaria, also strengthened the public's desire to control or eliminate the populations of some insect pests.  After the Industrial Revolution, however, the war between humans and insect pests escalated and, inevitably, found its way into the courts.  

    Part of the reason was changes in the way American farms were organized and operated after the mid-nineteenth century.  The opening of the Great Plains to settlement by Euro-Americans, the creation of a transportation infrastructure that allowed easy shipping of grain and other farm products from remote growing areas to markets in cities and foreign countries, and the development of improved farm machinery all led to a different scale of farming, and a more specialized form of agriculture.  If you're a farmer who has bought a big expensive machine that can harvest wheat but not corn or beans, you now have a powerful incentive to grow nothing but wheat for market.  Even if the farmer could reasonably rent harvesting machinery, the pressure would be similar if wheat was selling for a much higher markup (profit margin) in the distant markets than the other crops he could grow.  Economists call this trend specialization, and note that it is often more efficient than subsistence-style farming in which farmers grow a little bit of everything.  Ecologists, on the other hand, use the epithet "monoculture" to characterize a style of farming that suppresses biodiversity not only by clearing large swaths of land of its native vegetation, but also by limiting the crops each farmer plants.  

    Under any label, single-crop farms create an ideal environment for crop pests: food as far as the eye can see, and often relatively few predators because their habitat requirements may be different from the pests' (and thus their best breeding or foraging areas may have been destroyed by monoculture farming).  The improved transportation system also helped to transplant crop pests to new locations where their predators did not reside. The result in the post-civil war era was massive, economically devastating insect infestations--including a Biblical-style plague of Rocky Mountain locusts in the 1870s.   When the bugs attacked, the farmers were generally defenseless--the "best management practices" of the time involved expedients such as paying children to pick bugs off of crops, or spraying the plants with whale oil so that the pests would slide off of the leaves and be stomped to death by workers. Something had to be done. 

    Both government and the market responded to the farmer's plight.   Congress created a Commission on Entomology in the 1870s to begin studying crop pests like the Rocky Mountain locust, and the Commission soon became a permanent part of government as the Division of Entomology and then the Bureau of Entomology, in the Department of Agriculture.  Before long, farmers and inventors found chemical substances that would kill or repel crop pests.  The first effective industrial crop pesticide was Paris green, a paint pigment containing copper and arsenic.  Until a few years ago, the familiar greenish pressure-treated wood used in decks and playgrounds was impregnated with copper and arsenic, along with chromium, because these substances are toxic to a wide range of living things that might try to make a meal out of the wood.  Contemporary pressure-treated wood relies primarily on copper compounds, which are less toxic to humans (though not to other biota).

    By the beginning of the twentieth century, another heavy metal pesticide, lead arsenate, emerged to surpass Paris green in popularity.  The development, commercialization, and regulation of these early pesticides is reviewed in James Whorton, Before Silent Spring: Pesticides and Public Health in Pre-DDT America (Princeton University Press, 1974).

    There was relatively little regulation at the outset of the industrial pesticide era.  Farmers' associations generally cooperated with the Department of Agriculture to inform consumers about the need to peel or wash fruits and vegetables, and to develop machines and techniques to wash pesticide residues off food items before they were shipped to market.  During the first decade of the twentieth century, pure food and drug laws were enacted by the federal government, but these were generally targeted at substances intentionally added to the food supply rather than unintentional additives such as pesticide residues.  The leading statute of this era, the federal Food and Drug Act, seemed to be aimed primarily at deceptive selling practices rather than consumer safety: it prohibited the marketing of foods that were "adulterated or misbranded."  You should think about how these concepts could be extended to encompass problems like pesticide residues on fresh fruits.  In the early days of the Food and Drug Administration, the agency tested the effects of potentially hazardous food additives by recruiting a dozen healthy young male volunteers, feeding them food laced with the additives in question, and having a physician monitor their health.  They were known as "The Poison Squad."  Harvey W. Wiley, The History of a Crime Against the Food Law Chapter 2 (Arno Press Reprint Edition, 1976).  Would this method provide good evidence of the health effects of substances such as lead or arsenic residues on food crops?  What legal and ethical problems might arise from this form of testing?  What alternatives are there?

    After World War II, the insecticide situation changed radically with the introduction of the first pesticide made from synthetic organic chemicals, DDT.  The following contemporary account appears to be a fairly accurate picture of what science knew about DDT when it was released for marketing as a consumer and agricultural product.  Have they adequately looked at all the risks or problems DDT might cause?  Have they used appropriate tests to assess its health and environmental impacts?

DDT is one of the many valuable things we have salvaged from the waste left by war on a thousand battlefields. . . .

DDT is an insecticide. It kills "bugs" of all sorts. In fact it seems destined already to take a place as the best weapon yet discovered in man's ages-long war with a hitherto unconquerable enemy, the insects. It is not a panacea; it will not kill all insects but it will kill more of them than anything else so far known. It has been rather badly presented to the public as a "miracle" insect killer and entangled with all the sentimental appeal naturally clinging to something that saved soldiers' lives and health and hastened the day of victory. . . . It will kill not only insects but other cold-blooded and warm-blooded forms of life, because it is a powerful chemical. The only element of the story that smacks of the miraculous is the fact that it came along just when we needed it -- and badly -- to help win the war.

DDT, as compared with most other insecticides, has two outstanding characteristics. In the first place its insecticidal effect lasts a long time; properly applied it stays in place and kills for as long as several months (in some cases). Entomologists call this the "residual" effect of DDT. Most other insecticides wash off, evaporate, or change chemically so that their effect is comparatively shorter. In the second place it has a "two-way action." To understand that, it is necessary to recall that there are two kinds of insect pests: those which chew plant foliage and those which instead puncture it with a beak and suck out its juices. The chewing insects will succumb to a stomach poison, something they ingest with the vegetation they eat. The sucking insects require a contact poison, something that will kill them when it hits any part. DDT's two-way action means that it works against both types; it kills when eaten and it kills insects that merely walk on it. A third important factor, though not so exclusive, is the fact that it is an extremely powerful poison; minute doses kill. . . .

. . . [T]he triple combination explains why the talk about a miracle insecticide began and why DDT struck the insect world with an effect perhaps comparable to the atomic bomb on human beings. It explains, too, why American DDT production, which jumped from nothing to 3,000,000 lb. a month in less than 2 years, is being maintained at a high level though the military's demands are dropping steadily. . . .

We know now that it will kill practically all insects, such as mosquitoes, flies, and lice, that plague man and his animals and that it will kill very many of the agriculturally important insects. But we are only beginning to envision its potentialities, as imagination begins to build on the foundation of fact presented to us by the laboratory men. It can also be sprayed from an airplane, and that means clearing forests of the insect plagues that destroy them. Perhaps the same technic [sic] can be applied to cities under municipal sponsorship, thus relieving man of the necessity for screens and fly swatters. There are plans to include it in paints, soap powders, floor waxes, and other articles. . . .

. . . An immediate need is for some standardization of dosage for the various purposes and a standard form of reporting dosages. So far every research worker has figured out his own formulation and reported it differently, with the result that it is sometimes impossible to determine the amount of DDT that reached and killed the bug. It is also clear that, because of the lack of preliminary instruction as to dosages, much of the research work employed needlessly high amounts. Standardization would make comprehension and interpretation of research work simpler and also enable it to be tested in the field and forest, where DDT must eventually meet its supreme and decisive tests. . . .

For, until all possible information regarding DDT has been gathered and distributed, we shall not be able to use it to its full potential. To use an insecticide intelligently we must know which insects yield to it and which resist it. How small a dose will kill which insect? In what form shall it be administered--dusts, aerosols, solutions, or suspensions? What does it cost? What will it do to beneficial insects, such as bees, the unique pollinators of many crops, and those which in nature prey on harmful species? What plants will it hurt? Will it poison the soil as the arsenicals do? . . . What about insects that attack man himself and his domestic animals? Will it injure the hosts as well as their insect parasites? Does it hurt wild life, the birds and fishes and small mammals of the forest areas? . . .

Thanks to dozens of chemists and entomologists and other workers in various government services, who almost alone have had control of DDT since it was brought to this country, many of these questions can be answered definitely now, as will be seen. . . .

. . . We know definitely that it is a good insecticide and that it is safe for man to use. Against most insects it is the best we have. There are some drawbacks, but they do not seem so serious as when they were first pointed out and should not interfere with a most intensive effort to bring DDT into full use.

. . . .

. . . It evaporates only very slowly, and exposure to air does not weaken it. But one of its most valuable properties, the key to its long-lasting effect, is that it does not dissolve in water beyond about 1 part per million, an insignificant amount. It dissolves only in fats and oils and various commercial solvents. . . .

. . . .

In 1939, just about the time the German armies were moving into Poland and Switzerland was having trouble getting outside chemical shipments, the Colorado potato beetle, which had gone to Europe with the American Army's supplies in the First World War, struck the Swiss potato crop. DDT got its first major test. It destroyed the beetle and saved the crop. Tests then showed that it was effective against a number of other insects common in Switzerland, including lice.

By 1942--the United States was then in the war--its value was well established. The Geigy Company, Swiss dye house which owned the patent on the material, offered it to the American Army, and a small shipment was sent to this country as a potential lousicide.

. . . .

But by the spring of 1943 the safety and effectiveness of DDT powder as a lousicide had been well established, and on May 26, 1943, the first order fixing on a 10 per cent DDT powder in pyrophyllite as the Army louse powder was issued. Wherever louse-borne typhus existed, every American soldier or sailor received a 2-oz. Salt-shaker-type can of this powder monthly, with instructions to sprinkle it in his clothing. There was never a case of DDT poisoning, and probably no soldier or sailor had lice, if he used the powder.

. . . .

With that type of experience at hand, the Army was ready to fight the typhus epidemic in Naples in December, 1943, and January, 1944, an epidemic carried back to Italy, after Italy's surrender, by Italian troops returning from Yugoslavia, where the disease is endemic. The mass-dusting stations were set up all over Naples, each manned by 6 to 20 persons, some of them dusting as many as 5,000 persons a day and altogether handling about 50,000 a day at the height of the campaign. By mid-march more than 2,250,000 persons had been deloused. The epidemic was stopped, and no American soldier it Italy got typhus.

…

…

Human Beings. As far as man himself is concerned, chemists who have studied the toxicology of DDT estimate that it would take 5 to 10 g. of it to provide a fatal dose for an adult; with such a lightweight powder as DDT, that would be about a handful, though it represents only about 1/5 oz. One to five milligrams could cause symptoms of poisoning.

A group of scientists at the National Institute of Health of the U.S. Public Health Service, Bethesda, Md., reported that they had exposed two men, one aged forty-two years, the other fifty-four, to air saturated with DDT from aerosol bombs at the rate of 1 g. per 1,000 cu. ft. of air for 1 hr. a day for 6 days. Careful studies of the two subjects, before and after the test, brought this verdict: no toxic effects.

. . . .

Studies have also been made of persons whose work exposes them to DDT, and the verdict has been the same. Another U.S. Public Health Service scientist said that 1/2 g. of DDT swallowed had produced no ill effects.

. . . .

The same journal told of tests on two volunteers who remained 48 hr. in a steel chamber, the inside of which was coated with a 2 per cent DDT paint, over which a film of lubricating oil was spread. Careful observation showed that contact of the naked skin of their backs with the DDT and oil produced "definite toxic effects," including numerous changes in blood chemistry and the appearance of indoxyl sulfate in the urine; together with heaviness of limbs, severe pains in joints, sight impairment, muscular tremors and weakness, and patchy anesthesia, indicating nerve involvement. Return to normal took 26 to 33 days.

. . . .

DDT works slowly. An insect walking across a DDT-impregnated surface or struck with a droplet from a spray may function normally for a while--even bite--but then it loses the power of coordination, begins to tremble, goes into convulsions, and finally dies. The process may last from one to several hours. . . . A few insects are unaffected by it; some may recover from insufficient doses.

The exact mechanism by which its insecticidal effect is accomplished is not yet completely understood. There is some evidence to indicate that its affinity for fats and oils (indicated by its solubility in them) will eventually lead to the secret. Insects' hard outer shells (the chitinous exoskeleton) contain certain fatty materials that may absorb it. The tissue of which nerve sheaths are formed also contains fatty substances. . . . And apparently DDT is a "nerve poison" to insects, as indicated by the convulsions which poisoned insects display.

Further evidence of its fat affinity has been found in studies on dogs fed DDT over long periods. Heavy deposits, relatively speaking, were found in the body fat, and more was associated with the plentiful fat of the milk of lactating dogs. When the poison was administered in oil solutions, the deposits were larger. They disappeared when the poison was stopped.

DDT in the milk of lactating rats whose diet consisted of 0.1 per cent DDT was also passed on to their nursing offspring, two Ohio investigators reported. The typical tremors appears in the mother rats between the sixth and the thirteenth days and in the nurslings between the fourteenth and fifteenth days of the DDT diet. In 18 days all were dead but one of the three mothers and one of the nurslings, both of whom recovered when the DDT was stopped.

. . . It was noted that the longer the goats remained on the DDT diet the more toxic their milk became. The same DDT goat milk when fed to a nursing mother rat produced symptoms in her suckling offspring. The DDT apparently disappeared from the goat milk in about 48 hr., at least in toxic amounts.

A half-grown kitten died of the poisoned goat milk in 3 days, but apparently goats have a high resistance to it, for neither mother nor kids died. However, lactation ceased in the goats between the twenty-first and twenty-eighth days of DDT dosage.

The DDT was in the fat globules of the milk, for butter made from poisoned goat milk killed rats. . . .

. . . .

Beneficial Insects. DDT, like other insecticides, kills beneficial as well as harmful insects. There are many of these--the bees, wasps, and flies that pollinate many of our most important crops, the flies and larvae that serve as food for birds and fish and as bait for fishermen, others that serve to improve the soil or as scavengers, and those which destroy other insects as predators or parasites. Most important of all probably are the predators, the parasites, and the bees. DDT can kill all of them. In some instances it is not effective against harmful insects, such as orchard mites, but kills the predators that destroy them, such as lady beetles. However, the situation is not so serious as it appears to be at first glance; the same thing is true of other insecticides and yet they continue to be used.

. . . .

. . . Paris green and some others will kill bees, but the worst of all, to beekeepers, are the arsenates, which the bees take back to the hive, thus poisoning the whole colony. The topic is so important that several court suits are now reported in progress to determine the responsibility of farmers who kill neighbors' bees with insecticides applied to their own crops. So much insecticide has been used in some orchards that the arsenic settling down has poisoned the soil and forced its abandonment.

. . . .

The Balance of Nature. Fish, Birds, Mammals. Back in the early days of experimentation with DDT it was applied on the surface of one of two neighboring ponds in Tennessee as part of a test against mosquito larvae. It killed the larvae successfully, but it also killed the fish in the pond. Moreover -- and surprisingly -- fish in the other pond died. . . . [T]he mystery was soon dispelled. The local ducks were to blame. They were picking up enough of the DDT from the surface of the treated pond and carrying it to the other to kill the fish in the second. It was not a serious mishap, but it opened up a new line of investigation -- the danger DDT carried for wild life.

The Army has not been interested in that phase. The military purpose was to kill mosquitoes and lice, to protect the lives of soldiers and keep them on the fighting line, no matter what happened to the fish, the Japs, the birds, or any other accidental victim. The Army could -- and did -- practically sterilize with airplane-dispersed DDT solutions various combat areas, such as certain Pacific islands, so that some of the fly-bitten, mosquito-ridden coral specks were entirely free of insects for long periods.

But that entirely understandable attitude will not do for peace uses on valuable agricultural, forest, or recreation areas. Not only might it destroy their value, but it might also upset the balance of nature and thus open the way to permanent harm. The balance of nature here refers to the natural economic setup involving the closely interwoven food supplies of various animals, the insects themselves, fish, birds, mammals, the pollination function of the bees, the scavenger function of certain species, and related elements. …

When it was shown by laboratory tests that as little as 0.1 part per million in water will kill all the goldfish in a tank, the experimenters realized that fish are particularly susceptible to DDT. Later tests in the field confirmed this. For instances, DDT was sprayed by airplane at the rate of 0.5 lb. per acre on a 5-mile strip of Island Beach on the eastern side of Barnegat Bay, N.J., to control mosquitoes. It cleaned up the insects successfully, but the next few tides washed up some 75,000 dead fish on the shore--menhaden, mullet, killies, and other shore fish largely, according to the U.S. Fish and Wild Life Service. Still later fishermen reported dead, dying, or paralyzed crabs in the bay, though most of the crabs had simply disappeared. . . . Further studies showed that tadpoles, crayfish, frogs, salamanders, snakes, turtles, and many water insects are easily killed by DDT. The film of oil on the surface also kills aquatic life coming up to breathe. Moreover, it was shown that part of the poison eventually sinks and kills some of the bottom organisms. These results have been confirmed several times in planned experiments.

A series of laboratory tests with DDT in Lake Erie water showed that DDT is toxic to Daphnia, the microscopic freshwater shellfish which serve as food for small fish. Since the small fish are in turn a principal food of larger, economically important fish like bass, the observation may be significant. Using various concentrations of a 1 per cent solution of DDT in acetone, the author reported:

Actually, as far as many observers will commit themselves at the present stage of the investigation, great concern over the disturbance of the balance of nature does not seem to be justified. The concentrations to be used, definitely valuable against the insects aimed at, will eventually be set at a low level, much below the 5 lb. per acre reported to have killed Pennsylvania's birds. If the birds disappear it is more likely to be because their food supply -- insects -- has been killed off. Moreover, areas in which the animal population has been driven out with DDT tend to fill up again rather soon.

The foregoing pages should have made it clear that DDT is here to stay. . . .

Early DDT Litigation

Despite the rosy picture painted in advertisements and in books like the one painted above, litigation against DDT began in the 1950s. Along with other celebrated legal cases of the mid-twentieth century, the DDT litigation helped set the pattern for environmental law to this day.  In the following materials, note whether anti-DDT plaintiffs are suing manufacturers and applicators directly, or are instead suing an agency to force government to do something against the applicators or manufacturers.

The new miracle pesticide was pressed into service in the government's long-running (and losing) battle with the gypsy moth. The gypsy moth is an exotic (non-native) species that escaped from the home of a Massachusetts entomologist in 1869. Lacking many of its natural predators and parasites, the moth quickly established itself and began devouring eastern trees, ranging from lawn and garden ornamentals to forest hardwoods. (Gypsy moths are particularly fond of oaks.)

In the best military tradition, the National Plant Board, composed of representatives from all of the states, called on government to set up a "containment zone" to prevent the pest from spreading into as-yet-uninfested areas. Federal and state agriculture departments responded by setting up a 25-mile-wide barrier zone stretching from the Adirondack Mountains to Long Island Sound. To maintain this insect-free zone (which was soon breached by the invaders), the agencies began aerial spraying in and around it with DDT and other insecticides.

A group of Long Island property owners, led by Robert Cushman Murphy, an eminent biologist, went to federal court in an effort to block the spraying. In those days, Long Island was still largely rural, though it was rapidly becoming "suburbanized." After a month-long trial, at which fifty witnesses testified, the court ruled in favor of the spraying program. Murphy v. Benson, 164 F. Supp. 120 (E.D.N.Y. 1958). The court concluded that the statute authorizing the Department of Agriculture to undertake the spraying program was not an unconstitutional delegation of legislative power, that insect control is a function that serves the public interest and thus falls within the police power, and that the means chosen by the Secretary--aerial spraying in a populated area--was a reasonable means of carrying out that power. In reaching these conclusions, the court noted that there was no evidence that any individual had actually suffered physical harm from the spraying; thus it was at most an annoyance, even though some of the plaintiffs wanted to grow organic, pesticide-free produce either for personal consumption or for sale. The court observed:

Plaintiffs pursued the case all the way to the Supreme Court, but certiorari was denied, Murphy v, Butler, 362 U.S. 929 (1960). Justice William O. Douglas, an ardent conservationist, filed a lone dissent in which he observed:

1. A Fable for Tomorrow

. . . Even in winter the roadsides were places of beauty, where countless birds came to feed on the berries and on the seed heads of the dried weeds rising above the snow. The countryside was, in fact, famous for the abundance and variety of its bird life, and when the flood of migrants was pouring through in spring and fall people traveled from great distances to observe them. Others came to fish the streams, which flowed clear and cold out of the hills and contained shady pools where trout lay. So it had been from the days many years ago when the first settlers raised their houses, sank their wells, and built their barns.

Then a strange blight crept over the area and everything began to change. Some evil spell had settled on the community: mysterious maladies swept the flocks of chickens; the cattle and sheep sickened and died. Everywhere was a shadow of death. The farmers spoke of much illness among their families. . . . There had been several sudden and unexplained deaths, not only among adults but even among children, who would be stricken suddenly while at play and die within a few hours.

There was a strange stillness. The birds, for example -- where had they gone? Many people spoke of them, puzzled and disturbed. The feeding stations in the backyards were deserted. The few birds seen anywhere were moribund; they trembled violently and could not fly. It was a spring without voices. On the mornings that had once throbbed with the dawn chorus of robins, catbirds, doves, jays, wrens, and scores of other bird voices there was now no sound; only silence lay over the fields and woods and marsh.

On the farms the hens brooded, but no chicks hatched. The farmers complained that they were unable to raise any pigs -- the litters were small and the young survived only a few days. The apple trees were coming into bloom but no bees droned among the blossoms, so there was no pollination and there would be no fruit.

. . . Even the streams were now lifeless. Anglers no longer visited them, for all the fish had died.

In the gutters under the eaves and between the shingles of the roofs, a white granular powder still showed a few patches; some weeks before it had fallen like snow upon the roofs and the lawns, the fields and streams.

No witchcraft, no enemy action had silenced the rebirth of new life in this stricken world. The people had done it themselves.

. . . .

2. The Obligation to Endure

During the past quarter century this power has not only increased to one of disturbing magnitude but it has changed in character. The most alarming of all man's assaults upon the environment is the contamination of air, earth, rivers, and sea with dangerous and even lethal materials. This pollution is for the most part irrecoverable; the chain of evil it initiates not only in the world that must support life but in living tissues is for the most part irreversible. . . . [C]hemicals sprayed on croplands or forests or gardens lie long in soil, entering into living organisms, passing from one to another in a chain of poisoning and death. Or they pass mysteriously by underground streams until they emerge and, through the alchemy of air and sunlight, combine into new forms that kill vegetation, sicken cattle, and work unknown harm on those who drink from once pure wells. As Albert Schweitzer has said, "Man can hardly even recognize the devils of his own creation."

It took hundreds of millions of years to produce the life that now inhabits the earth -- eons of time in which that developing and evolving and diversifying life reached a state of adjustment and balance with its surroundings. The environment, rigorously shaping and directing the life it supported, contained elements that were hostile as well as supporting. … Given time -- time not in years but in millennia -- life adjusts, and a balance has been reached. For time is the essential ingredient; but in the modern world there is no time.

. . . .

The whole process of spraying seems caught up in an endless spiral. Since DDT was released for civilian use, a process of escalation has been going on in which ever more toxic materials must be found. This has happened because insects, in a triumphant vindication of Darwin's principle of the survival of the fittest, have evolved super races immune to the particular insecticide used, hence a deadlier one has always to be developed -- and then a deadlier one than that. It has happened also because, for reasons to be described later, destructive insects often undergo a "flareback," or resurgence, after spraying, in numbers greater than before. Thus the chemical war is never won, and all life is caught in its violent crossfire.

Along with the possibility of the extinction of mankind by nuclear war, the central problem of our age has therefore become the contamination of man's total environment with such substances of incredible potential for harm -- substances that accumulate in the tissues of plants and animals and even penetrate the germ cells to shatter or alter the very material of heredity upon which the shape of the future depends.

. . . .

. . . . It is widely believed that since so many people came into extremely intimate contact with DDT and suffered no immediate ill effects the chemical must certainly be innocent of harm. This understandable misconception arises from the fact that -- unlike other chlorinated hydrocarbons -- DDT in powder form is not readily absorbed through the skin. Dissolved in oil, as it usually is, DDT is definitely toxic. If swallowed, it is absorbed slowly through the digestive tract; it may also be absorbed through the lungs. Once it has entered the body it is stored largely in organs rich in fatty substances (because DDT itself is fat-soluble) such as the adrenals, testes, or thyroid. Relatively large amounts are deposited in the liver, kidneys, and the fat of the large, protective mesenteries that enfold the intestines.

This storage of DDT begins with the smallest conceivable intake of the chemical (which is present as residues on most food-stuffs) and continues until quite high levels are reached. The fatty storage depots act as biological magnifiers, so that an intake of as little as 1/10 of 1 part per million in the diet results in storage of about 10 to 15 parts per million, an increase of one hundredfold or more. These terms of reference, so commonplace to the chemist or the pharmacologist, are unfamiliar to most of us. One part in a million sounds like a very small amount -- and so it is. But such substances are so potent that a minute quantity can bring about vast changes in the body. In animal experiments, 3 parts per million has been found to inhibit an essential enzyme in heart muscle; only 5 parts per million has brought about necrosis or disintegration of liver cells; only 2.5 parts per million of the closely related chemicals dieldrin and chlordane did the same.

. . . .

One of the most sinister features of DDT and related chemicals is the way they are passed on from one organism to another through all the links of the food chains. For example, fields of alfalfa are dusted with DDT; meal is later prepared from the alfalfa and fed to hens; the hens lay eggs which contain DDT. Or the hay, containing residues of 7 to 8 parts per million, may be fed to cows. The DDT will turn up in the milk in the amount of about 3 parts per million, but in butter made from this milk the concentration may run to 65 parts per million. Through such a process of transfer, what started out as a very small amount of DDT may end as a heavy concentration. . . .

The poison may also be passed on from mother to offspring. Insecticide residues have been recovered from human milk in samples tested by Food and Drug Administration scientists. This means that the breast-fed human infant is receiving small but regular additions to the load of toxic chemicals building up in his body. It is by no means his first exposure, however: there is good reason to believe this begins while he is still in the womb. In experimental animals the chlorinated hydrocarbon insecticides freely cross the barrier of the placenta, the traditional protective shield between the embryo and harmful substances in the mother's body. . . .

Over increasingly large areas of the United States, spring now comes unheralded by the return of the birds, and the early mornings are strangely silent where once they were filled with the beauty of bird song. This sudden silencing of the song of birds, this obliteration of the color and beauty and interest they lend to our world have come about swiftly, insidiously, and unnoticed by those whose communities are as yet unaffected.

From the town of Hinsdale, Illinois, a housewife wrote in despair to one of the world's leading ornithologists, Robert Cushman Murphy, Curator Emeritus of Birds at the American Museum of Natural History.

One story might serve as the tragic symbol of the fate of the birds -- a fate that has already overtaken some species, and that threatens all. It is the story of the robin, the bird known to everyone. To millions of Americans, the season's first robin means that the grip of winter is broken. Its coming is an event reported in newspapers and told eagerly at the breakfast table. And as the number of migrants grows and the first mists of green appear in the woodlands, thousands of people listen for the first dawn chorus of the robins throbbing in the early morning light. But now all is changed, and not even the return of the birds may be taken for granted.

The survival of the robin, and indeed of many other species as well, seems fatefully linked with the American elm, a tree that is part of the history of thousands of towns from the Atlantic to the Rockies, gracing their streets and their village squares and college campuses with majestic archways of green. Now the elms are stricken with a disease that afflicts them throughout their range, a disease so serious that many experts believe all efforts to save the elms will in the end be futile. It would be tragic to lose the elms, but it would be doubly tragic if, in vain efforts to save them, we plunge vast segments of our bird populations into the night of extinction. Yet this is precisely what is threatened.

The so-called Dutch elm disease entered the United States from Europe about 1930 in elm burl logs imported for the veneer industry. It is a fungus disease; the organism invades the water-conducting vessels of the tree, spreads by spores carried in the flow of sap, and by its poisonous secretions as well as by mechanical clogging causes the branches to wilt and the tree to die. The disease is spread from diseased to healthy trees by elm bark beetles. . . . Efforts to control the fungus disease of the elms have been directed largely toward control of the carrier insect. In community after community, especially throughout the strongholds of the American elm, the Midwest and New England, intensive spraying has become a routine procedure.

What this spraying could mean to bird life, and especially to the robin, was first made clear by the work of two ornithologists at Michigan State University, Professor George Wallace and one of his graduate students, John Mehner. When Mr. Mehner began work for the doctorate in 1954, he chose a research project that had to do with robin populations. …

Spraying for Dutch elm disease began in a small way on the university campus in 1954. The following year the city of East Lansing (where the university is located) joined in, spraying on the campus was expanded, and, with local programs for gypsy moth and mosquito control also under way, the rain of chemicals increased to a downpour.

During 1954, the year of the first light spraying, all seemed well. … But soon it became evident that something was wrong. Dead and dying robins began to appear on the campus. Few birds were seen in their normal foraging activities or assembling in their usual roosts. Few nests were built; few young appeared. The pattern was repeated with monotonous regularity in succeeding springs. The sprayed area had become a lethal trap in which each wave of migrating robins would be eliminated in about a week. Then new arrivals would come in, only to add to the numbers of doomed birds seen on the campus in the agonized tremors that precede death.

. . . .

Several facts suggested that the robins were being poisoned, not so much by direct contact with the insecticides as indirectly, by eating earthworms. Campus earthworms had been fed inadvertently to crayfish in a research project and all the crayfish had promptly died. A snake kept in a laboratory cage had gone into violent tremors after being fed such worms. And earthworms are the principal food of robins in the spring.

A key piece in the jigsaw puzzle of the doomed robins was soon to be supplied by Dr. Roy Barker of the Illinois natural History Survey at Urbana. Dr. Barker's work, published in 1958, traced the intricate cycle of events by which the robins' fate is linked to the elm trees by way of the earthworms. The trees are sprayed in the spring (usually at the rate of 2 to 5 pounds of DDT per 50-foot tree, which may be the equivalent of as much as 23 pounds per acre where elms are numerous) and often again in July, at about half this concentration. … The poison forms a tenacious film over the leaves and bark. Rains do not wash it away. In the autumn the leaves fall to the ground, accumulate in sodden layers, and begin the slow process of becoming one with the soil. In this they are aided by the toil of the earthworms, who feed in the leaf litter, for elm leaves are among their favorite foods. In feeding on the leaves the worms also swallow the insecticide, accumulating and concentrating it in their bodies. . . . Undoubtedly some of the earthworms themselves succumb, but others survive to become "biological magnifiers" of the poison. In the spring the robins return to provide another link in the cycle. As few as 11 large earthworms can transfer a lethal does of DDT to a robin. And 11 worms form a small part of a day's rations to a bird that eats 10 to 12 earthworms in as many minutes.

Not all robins receive a lethal dose, but another consequence may lead to the extinction of their kind as surely as fatal poisoning. The shadow of sterility lies over all the bird studies and indeed lengthens to include all living things within its potential range. . . . In 1954 every robin nest under observation by Mehner produced young. Toward the end of June, 1957, when at least 370 young birds (the normal replacement of the adult population) would have been foraging over the campus in the years before spraying began, Mehner could find only one young robin. A year later Dr. Wallace was to report: "At no time during the spring or summer [of 1958] did I see a fledgling robin anywhere on the main campus, and so far I have failed to find anyone else who has seen one there."

Part of this failure to produce young is due, of course, to the fact that one or more of a pair of robins dies before the nesting cycle is completed. But Wallace has significant records which point to something more sinister -- the actual destruction of the birds' capacity to reproduce. He has, for example, "records of robins and other birds building nests buy laying no eggs, and others laying eggs and incubating them but not hatching them. . . . Our analyses are showing high concentrations of DDT in the testes and ovaries of breeding birds," he told a congressional committee in 1960. "Ten males had amounts ranging from 30 to 109 parts per million in the testes, and two females had 151 and 211 parts per million respectively in the egg follicles in their ovaries."

. . . .

The question of chemical residues on the food we eat is a hotly debated issue. The existence of such residues is either played down by the industry as unimportant or is flatly denied. Simultaneously, there is a strong tendency to brand as fanatics or cultists all who are so perverse as to demand that their food be free of insect poisons. In all this cloud of controversy, what are the actual facts?

It has been medically established that, as common sense would tell us, persons who lived and died before the dawn of the DDT era (about 1942) contained no trace of DDT or any similar material in their tissues. As mentioned in chapter 3, samples of body fat collected from the general population between 1954 and 1956 averaged from 5.3 to 7.4 parts per million of DDT. . . .

Among the general population with no known gross exposures to insecticides it may be assumed that much of the DDT stored in fat deposits has entered the body in food. To test this assumption, a scientific team from the United States Public Health Service sample restaurant and institutional meals. Every meal sampled contained DDT. . . .

The quantities in such meals may be enormous. In a separate Public Health Service study, analysis of prison meals disclosed such items as stewed dried fruit containing 69.6 parts per million and bread containing 100.9 parts per million of DDT!

In the diet of the average home, meats and any products derived from animal fats contain the heaviest residues of chlorinated hydrocarbons. This is because these chemicals are soluble in fat. Residues on fruits and vegetables tend to be somewhat less. These are little affected by washing -- the only remedy is to remove and discard all outside leaves of such vegetables as lettuce or cabbage, to peel fruit and to use no skins or outer covering whatever. Cooking does not destroy residues.

Web Links:Several websites are devoted to the life and work of Rachel Carson; see, e.g., http://www.rachelcarson.org/

or http://www.dep.state.pa.us/dep/Rachel_Carson/Rachel_Carson.htm
 
 
 
     Carson's book and Robert Cushman Murphy's unsuccessful campaign against DDT raised the consciousness of many people, including tort lawyer Victor Yannacone.  One result was the following case.  Again, you should consider choice of defendant, and choice of legal theory.  Were there better options available then?  What theories could you use today that were not available when this suit was brought?. 

OPINION: [*469] [**476] The question here is whether we shall restrain any further use of DDT in Suffolk County by its Mosquito Control Commission. Plaintiff Yannacone sues (individually and on behalf of all of the people of Suffolk County) the county, the County Executive, and the County Mosquito [**477] Control Commission (hereinafter MCC), to stop their use of chlorinated hydrocarbon pesticides. We are additionally asked to declare the right of residents to local natural resources undiminished by further use of these pesticides, specifically DDT. Plaintiff claims, and the defendants do not deny, that the use of chlorinated hydrocarbon pesticides does adversely affect Suffolk's natural resources. However, it is not conceded that these adverse effects are substantial, permanent or irreparable. On the basis of the admitted injury to natural resources, whether minimal or otherwise, a temporary injunction was previously granted.

In clarification [***3] of the respective positions of the parties it must be pointed out that the defendants have acknowledged that DDT negatively reacts upon "good" as well as "bad" insects, and that other chemicals are perhaps at least equally available to control harmful insects, though perhaps at greater cost, lesser efficiency, or both. It is argued by defendants that the MCC operates independently of the defendant County Executive and that many others, hunters and fishermen for instance, participate in activities injurious to natural resources. It is noted that the possible and practical subjugation of certain resources injured by DDT to a possibly greater benefit obtained by the control or elimination of mosquitoes, and the relatively minimal upset of the balance of nature without undue harm or danger to [*470] man or beast through the use of DDT, is a valid governmental operation.

So much for the general outline of positions taken in the pleadings. There is also a philosophical difference of opinion here, a probing on both sides running beneath technical expositions and directed to larger issues of man and government in contemporary society. In the first place, the defendants do not feel [***4] that the problem presented is one properly subject to judicial resolution. They say the relationship of man to his environment, and the extent of the dominance of the former over the latter, is the concern of the direct representatives of society, the Legislature, and not of the judiciary.

Yannacone obviously claims the existence of a duty owed by the defendants, here specifying it as, among other things, the preservation of local natural resources. If the duty exists the plaintiff may sue for a breach of it. Yet the point seems not so much duty and breach as judgment and evaluation. In and even beyond the context of this action what is involved, by implication, is the extent to which public authority may act with reference to an existing problem when such action, though otherwise valid, may adversely react upon still another area of public interest and concern. Here it is not so much that DDT controls mosquitoes, but rather that the job might be handled differently to minimize a collateral loss of natural resources. So we are asked to declare and preserve the natural resources of Suffolk County untainted by any further governmental application of DDT. This does not necessarily [***5] [**478] mean that we must choose a substitute, but such a declaration does involve the potential judicial intrusion upon the legislatively based powers exercised by the defendant MCC.

It must be made clear immediately that while we are as cognizant of the value of natural resources as this plaintiff we cannot declare any and every function of government subservient to that value. This is so despite reactions which might be anticipated by reason of continued artificial interference with the balance of nature. As an over-all proposition the interaction of natural factors upset by human intervention has consistently been accepted as a subservient condition of man's adaptation to and of his environment, whether thoughtful or thoughtless. As noted, the mere diminution of natural resources, accompanied by an increased sensitivity for remaining resources, will not alone permit judicial interference with a legislative recognition of the equation or its reaction to it.

The plaintiff traces the development of equity jurisdiction from the Saxon Kings of England to the present. The aim of [*471] this background is to establish the basis of our equitable jurisdiction to treat the [***6] specific problem of a specific person or group of persons who may be without adequate remedy otherwise. Initially plaintiff indicates no legal remedy available to halt the irreparable injury resulting from the continued use of DDT. If that use is wrong equity, it is said, can and should stop it . . . .

It is difficult to visualize a governmental upset of a part of the balance of nature in Suffolk County as such a wrong to plaintiff's interest in their general preservation as would warrant the application of a remedy at equity, traditional or otherwise. Without denigrating plaintiff's fears it must be obvious at once that many citizens are fearful of many policies and activities of government for reasons just as valid, subjectively or objectively, as plaintiff's. Yet where society acts through its representatives, to choose and pursue a course of action, the fact of that choice may not be judicially scrutinized other than as it [***7] certainly relates to fundamentally guaranteed rights inherent in our form of constitutional government. In fact, Yannacone does not claim an unconstitutional infringement of right here and, indeed, any such argument could easily be appreciated as subject to counterattack by those less sensitive to the life cycles of indigenous plants and creatures and simply more hostile to the antisocial tendencies of mosquitoes and other insects at any cost.

But what of the use of DDT as opposed to or in preference over other pesticides not quite so permanently harmful as DDT. DDT has, by its inherent chemical stability, become a continuing factor in some ecological life cycles so as to profoundly alter them and the environmental equilibrium. Thus, it is reasonably apparent that DDT is capable of and actually [**479] has to some extent caused extraordinary damage to the resources of this county. If in no other way, the chemical by its very stability has introduced an element of instability in the general ecosystem. . . .   It is fairly apparent then that the application of DDT in Suffolk County has and is continuing to have a demonstrable effect on local wildlife, reducing it slowly but surely, either directly across the board or indirectly from the top down, but reducing it nevertheless.

. . .  It is essentially the defendants' position that injury caused natural resources is no more than an expected concomitant of progress in terms of the socio-economic development of this rapidly expanding county, and a valid exercise of a governmental [***9] function in any event.

. . . A pesticide has been utilized by a governmental authority so as to decrease the totality of nature in the raw in Suffolk County. For this reason there is a fine chance that the existing biological equilibrium is in the process of a vast upheaval and rearrangement. But the plaintiff's interest in the "natural" status quo overlooks interests diametrically opposed to it. One, as inferred, is connected with what might be categorized as a positive public interest, if not policy, toward pest control and the related reduction of natural resources to accommodate a growing population.  . . .

[**480] The ultimate difficulty with this action is the court's appreciation of first, its own position in the framework of government, and second, the valid extent and exercise of the police powers by the Legislature. The vested legislative power (N. Y. Const., art. III, § 1) includes police powers. Those powers include, of course, the ability to declare a logical system whereby individuals [*473] and property are to be burdened so as to permit of the general welfare notwithstanding otherwise valid private interests (People ex rel. Armstrong v. Warden, 183 N. Y. 223).

There is little question that the legislative exercise of the police power establishing the availability of a County Mosquito Control Commission was proper. . . . Therefore, the specific question before us is narrowed to the propriety of the commission's utilization of a particular method of implementation of a properly delegated authority. Plaintiff believes the commission to have gone too far, using DDT when a lesser chemical might have been equally efficacious. . . . . As any examination of an exercise of police power requires, we may not weigh positive and negative effects of a particular course of legislative action. The significant area of inquiry relates merely to the existence of the public interest as served by the disputed exercise of police power (Defiance Milk Prods. Co. v. Du Mond, 309 N. Y. 537).

. . . .

Along the same lines, plaintiff's categorization of continued DDT application as a nuisance, that is an injury to person or property, is similarly not quite compelling. There is injury here, but that in part is something which is expected from the application of DDT. Collaterally additional injury to the animal resources of Suffolk County is not so [**481] positive an injury to an established right or interest of plaintiff, which right or interest is in fact presented in absolute terms, that this court can declare it to be one.

[*474] Plaintiff's right to protection here is, in our view, too nebulous to the court (though very real to plaintiff) to warrant [***13] intervention. . . . Plaintiff's remedy would seem to be better and more properly located with the policy making legislative unit as opposed to the policy executing body the focal point of this lawsuit.

The complaint must be dismissed.

Web Links: The Environmental Defense Fund, the organization founded by Carol and Victor Yannacone and other Long Islanders opposed to the liberal use of persistent pesticides, has become one of the "Big Ten" national environmental organizations, and has branched out to other issues such as global warming and transportation planning: http://www.edf.org/   It is known today simply as Environmental Defense.  A few years later, they were litigating against DDT in another forum, using a different theory. 

 As background to the principal case, first you can review a summary history of the principal statute--the Federal Insecticide, Fungiucide and Rodenticide Act--as described by the Supreme Court in Bates v. Dow AgroSciences, 544 U.S. 431 (2005). As this excerpt suggests, FIFRA evolved from a consumer protection statute designed to prevent economic harm, to a regulatory system to protect human health and safety, and then to encompass environmental protection:

Prior to 1910 the States provided the primary and possibly the exclusive source of regulatory control over the distribution of poisonous substances.  Both the Federal Government's first effort at regulation in this area, the Insecticide Act of 1910, 36 Stat. 331, and FIFRA as originally enacted in 1947, ch 125, 61 Stat. 163, primarily dealt with licensing and labeling. Under the original version of FIFRA, all pesticides sold in interstate commerce had to be registered with the Secretary of Agriculture.  The Secretary would register a pesticide if it complied with the statute's labeling standards and was determined to be efficacious and safe. n8 In 1970, EPA assumed responsibility for this registration process.

In 1972, spurred by growing environmental and safety concerns, Congress adopted the extensive amendments n9 that "transformed FIFRA from a labeling law into a comprehensive regulatory statute."  Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991, 81 L. Ed. 2d 815, 104 S. Ct. 2862 (1984).  "As amended, FIFRA regulated the use, as well as the sale and labeling, of pesticides; regulated pesticides produced and sold in both intrastate and interstate commerce; provided for review, cancellation, and suspension of registration; and gave EPA greater enforcement authority."  Id., at 991-992, 81 L. Ed. 2d 815, 104 S. Ct. 2862.  The 1972 amendments also imposed  a new criterion for registration--environmental safety.   Id., at 992, 81 L. Ed. 2d 815, 104 S. Ct. 2862.  See generally 4 F. Grad, Treatise on Environmental Law § §  8.02-8.03 (2004) (tracing FIFRA's statutory evolution).

Under FIFRA as it currently stands, a manufacturer seeking to register a pesticide must submit a proposed label to EPA as well as certain supporting data.  7 U.S.C. § §  136a(c)(1)(C), (F) [7 U.S.C.S. § §  136a(c)(1)(C), (F)].  The agency will register the pesticide if it determines that the pesticide is efficacious (with the caveat discussed below), §  136a(c)(5)(A); that it will not cause unreasonable adverse effects on humans and the environment, § §  136a(c)(5)(C), (D); §  136(bb); and that its label complies with the statute's prohibition on misbranding, §  136a(c)(5)(B); 40 C.F.R. §  152.112(f) (2004).  A pesticide is "misbranded" if its label contains a statement that is "false or misleading in any particular," including a false or misleading statement concerning the efficacy of the pesticide. §  136(q)(1)(A); 40 C.F.R. §  156.10(a)(5)(ii).  A pesticide is also misbranded if its label does not contain adequate instructions for use, or if its label omits necessary warnings or cautionary statements.  § §  136(q)(1)(F), (G). n10

    Because it is unlawful under the statute to sell a pesticide that is registered but nevertheless misbranded, manufacturers have a continuing obligation to adhere to FIFRA's labeling requirements.  §  136j(a)(1)(E); see also §  136a(f)(2) (registration is prima facie evidence that the pesticide and its labeling comply with the statute's requirements, but registration does not provide a defense to the violation of the statute); §  136a(f)(1) (a manufacturer may seek approval to  amend its label).  Additionally, manufacturers have a duty to report incidents involving a pesticide's toxic effects that may not be adequately reflected in its label's warnings, 40 C.F.R. § §  159.184(a), (b) (2004), and EPA may institute cancellation proceedings, 7 U.S.C. §  136d(b) [7 U.S.C.S. §  136d(b)], and take other enforcement action if it determines that a registered pesticide is misbranded.

Coahoma Chemical Company, the Environmental Defense Fund, and other parties seek review of the 14 June 1972 Order of the Administrator of the Environmental Protection Agency (EPA) which cancelled, [**2] effective 31 December 1972, almost all registrations for the use of DDT, except for limited public health and agricultural pest quarantine purposes. n1 Coahoma, along with other producers and users, challenges the Order as going too far in banning most uses of DDT; the Environmental Defense Fund (EDF) challenges the Order as not going far enough by allowing a few uses to remain.

I. AGENCY ACTION

. . . The EDF first sought cancellation of DDT registrations under the Federal Insecticide, Fungicide, and Rodenticide Act [FIFRA] in October 1969. n3 More than a year later, and after two cases challenging the lack of Government action had been brought in and decided by this court, n4 on 15 January 1971 n5 the Administrator of EPA issued cancellation notices for all registrations of insecticides containing DDT. However, no suspension of use was required at this [**3] time.

The statutory basis for the EPA action lies in the Federal Insecticide, Fungicide, and Rodenticide Act, FIFRA. This Act requires registration of every economic poison distributed or sold in the United States. n14 Registration is to be denied if the substance does not comply with the provisions of the Act, n15 and misbranding of the substance is a prohibited action. n16 Misbranding is defined in the statute to have occurred, "if in the case of an insecticide . . . . when used as directed or in accordance with commonly recognized practice it shall be injurious to living man or other vertebrate animals, or vegetation, [**7] except weeds, to which it is applied, or to the person applying such economic poison. n17 A later formulation of this requirement was incorporated in the Federal Environmental Pesticide Control Act of 1972, which requires denial of registration unless the substance "will perform its intended function without unreasonable adverse effects on the environment," n18 and unless "when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment." n19 The FIFRA provisions further require that the order of the Administrator cancelling registrations must be based on substantial evidence of record developed at a hearing, if a public hearing is held, and the order must set forth detailed findings of fact. n20
 
 

II. JUDICIAL REVIEW OF THE ADMINISTRATOR'S ORDER

A. The Test

. . . Once the Administrator has made a final order concerning the registration of a pesticide, that order is appealable to the United States Court of Appeals. The FIFRA statute directs the Court of Appeals to sustain the findings [*1251] of the Administrator with respect to questions of fact if "supported by substantial evidence when considered on the record as a whole." n21 The 1972 amendments further elaborate the scope of judicial review:

. . .Other courts have stressed that where questions involve a special expertise of an agency, such as in detailed scientific proceedings, the agency deserves special [**12] deference from the courts, although careful review is of course always required. n29

A review of the evidence in this case, as summarized by all the briefs, indicates that the situation is as described in Consolo: there is a great mass of often inconsistent evidence which was developed at the hearing; this evidence is substantial enough to support the conclusions of the Administrator, although it possibly might support contrary conclusions as well. Considering the evidence in the record as a whole, we cannot say that the Administrator's decision was not [**14] based on substantial evidence, even if the hazardous nature of DDT has not been proved beyond a reasonable doubt. Sufficient evidence has been adduced to show potentially great dangers from DDT, and the Administrator's decision to cancel the DDT registrations is well within his statutory authority.

Specifically, the Administrator states that DDT is hazardous because of several of its inherent properties: its persistence, mobility, and lipid solubility. n31 He contends that the alternatives to DDT do not have such properties, although he concedes that the alternatives may be more acutely toxic in the short run. He presents detailed evidence concerning the human hazards which may arise from DDT (carcinogenicity and mutagenicity of DDT), and also details the environmental hazards (effects on phytoplankton, beneficial agricultural insects, aquatic invertebrates, fish, and birds). n32 He concludes that an unacceptable risk to man and his environment is posed by continued use of DDT, n33 aside from the few carefully controlled uses concerning public health and agricultural quarantine purposes, which he permits. n34

These findings and the evidence on which they are based are vigorously challenged by Coahoma and other DDT users. While their evidence might be sufficient to have allowed the Administrator to have decided the other way, and permit DDT to continue, their evidence [*1253] is not sufficient to vitiate the actual decision of the Administrator as not having been based on substantial evidence in the record as a whole.

Since the Administrator here decided contrary to the conclusions of the Hearing Examiner, the question arises concerning the proper deference to be given to the Hearing Examiner's report. As the Supreme Court indicated in Universal Camera, the hearing examiner's findings and opinion are to be considered as part of the evidence of record, both by the Administrator and by the reviewing court.

In another aspect of the question of the substantiality of the evidence, Coahoma, et al., urge that the Administrator's findings are insufficient in that they are based to a large extent on data which does not directly and specifically relate to the use of DDT to combat the boll weevil and the bollworm in the cotton growing areas of the Southeast. n40 It is true that much of the evidence in the record concerning dangers of DDT [*1254] does not specifically relate to this one area or to the use on cotton crops. However, it is not necessary to have evidence on such a specific use or area in order to be able to conclude on the basis of substantial evidence that the use of DDT in general is hazardous. The Administrator has pointed to evidence in the record showing that use of DDT except in minuscule amounts in highly controlled circumstances should be curtailed because [**19] of unreasonable risks to health and the environment. n41 Reliance on general data, consideration of laboratory experiments on animals, etc., provide a sufficient basis to support the Administrator's findings, even with regard to each special use of DDT.

III. COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969

The rationale we first developed in Portland Cement is applicable here as well, and an exemption from the strict letter [**27] of the NEPA requirements is thus appropriate. The explicit language in FIFRA requires that pesticides be deregistered if they will be injurious to man and his environment. The substantive standard established by the statute places great emphasis on the quality of man's environment. Additionally, the procedural standards provide full opportunity for thorough consideration of the environmental issues, and for ample judicial review. In this particular case, lengthy hearings were held, during which public comment was solicited, and a wide scope of environmental aspects were considered. Thus the functional equivalent of a NEPA investigation was provided, for all of the five core NEPA issues were carefully considered: the environmental impact of the action, possible adverse environmental effects, possible alternatives, the relationship between long--and short-term uses and goals, and any irreversible commitments of resources---all received attention during the hearings and decision-making process. n56 The law requires no more.

. . . .

Note: Cleaning Up After DDT.  One legacy of DDT is continuing legal work, even after manufacturing of the compound has ceased. For example, the Montrose Chemical Company plant in Torrance, California manufactured DDT from 1947 to 1982, and then became a federal Superfund site as a result of disposal and spillage of the material on-site. Montrose also contaminated a large area of the ocean floor known as the Palos Verdes shelf, about a mile offshore of Los Angeles, as a result of some 5.5 million pounds of DDT discharges in the plant's wastewater. See generally Montrose Chemical Company of California v. EPA, 132 F.3D 90 (D.C. Cir. 1998) (whether offshore areas were properly included in Superfund site); Montrose Chemical Co. of California v. American Motorists Insurance Co., 117 F.3d 1128 (9^th Cir. 1997) (liability of insurers to indemnify defunct company); California v. Montrose Chemical Co. of California, 104 F.3d 1507 (9^th Cir. 1997) (liability of company for damages to natural resources).

Discussion Problem: West Nile Virus

   DDT was largely an economy vs. environment issue, at least at the time when it was banned: human health effects appeared to be relatively trivial.  (Today, chemicals like DDT are suspect as "endocrine disruptors," which we shall consider in future installments).  How does the analysis of a pesticide chemical change when it is being used to protect human health?  Below are some materials on West Nile Virus.  Consider what you would recommend if you were a member of a law firm representing the Town of Amherst, or a group of consultants hired by the town, which is planning for next summer and knows that some residents of the community are in favor of mosquito spraying, while others are vocally opposed.  What should the town consider in order to make a sound decision?  Here are some basic materials on West Nile:

 Travels of a Virus

by Nell Boyce

US News & World Report, Dec. 24, 2001, p. 51

Frank Bisignano still can't quite believe that a mosquito bite killed his beloved Adeline. "It's a big shock to me, this whole thing," says the Long Island resident, whose 71-year-old wife died on October 26, after five weeks in intensive care with West Nile virus. A neighbor, Karl Fink, also died of the mosquito-borne disease. Bisignano blames these deaths on county health officials. They chose not to spray insecticides this summer, unlike last year and 1999, when the virus first reached the United States. 

 Nassau County, N.Y., officials defend their actions, noting that testing of mosquitoes caught in traps around the county suggested a low prevalence of West Nile virus. County workers did kill larvae in watery breeding sites but didn't spray against adult mosquitoes. "You don't want to add any chemicals to the environment unless it's called for," says the health department's Cynthia Brown. "It's not a simple decision to make."

 More and more communities around the nation will have to grapple with this issue next year and in the years to come, because the virus has spread dramatically this year. Infected birds turned up from Maine to the tip of Florida and as far west as Iowa. While cold weather means the end of West Nile's peak season, it should resurge next spring. Eventually, says John Roehrig of the Centers for Disease Control and Prevention, "it's likely to end up throughout most of the United States."

 Symptoms. This year also marked the first time that people living far away from New York, in places like Alabama and Louisiana, fell ill with the virus, which can cause anything from flulike symptoms to fatal brain swelling. At least 55 people came down with severe symptoms, and at least six died. That's not a huge increase over the past two years, so public-health officials think their education campaigns have persuaded people to wear repellent, stay indoors at dawn and dusk, and eliminate stagnant water that mosquitoes use to breed. Scientists also are hard at work on a West Nile vaccine, and one company has a candidate that may move into clinical trials next year.

 Veterinarians already are using a different vaccine to try to protect horses, which have been hard hit. The virus sickened over 400 horses this year, and many died. Thoroughbred breeders were especially worried by the death of Rocket Express, a racehorse stabled at Churchill Downs, home to the Kentucky Derby.

 The virus seems most deadly for birds. Biologists have found the virus in about 80 species, including the threatened white-crowned pigeon, and they're considering trying to vaccinate endangered birds that might not survive a West Nile onslaught. Common birds like crows and blue jays have also suffered. While a massive die-off of crows first alerted officials that a new virus had emerged in 1999, no one knows what ultimate impact West Nile will have on this species. "I'm poised to start to answer those questions," says Kevin McGowan of Cornell University, who closely follows some 200 crows. While none have caught West Nile yet, he worries about 2002.

. . . .

Why They Sprayed Toxic Pesticides Over New York City: The U.S. Government's Secret Experimentation with Biological and Chemical Warfare

Mitchel Cohen
mitchelcohen@mindspring.com

http://www.groundscore.org/ (visited July 1, 2002)

The mass-spraying of dangerous insecticides on the entire population and environment of New York City for the last three years was initiated, we are told, as a massive effort to ensure public health by killing as many mosquitoes as possible and hopefully, among them, mosquitoes carrying the West Nile Virus. However, in reality the spray program smacks more of a military operation than a public health program.

I write in the present tense because the City has asked companies to submit bids for a new round of aerial spraying from fixed-wing aircraft as well as helicopters, despite the fact that, by mid-May of 2002, the incidence of WNV-related encephalitis has virtually disappeared from New York, including those areas that did not resort to mass-spraying of adulticides [chemicals that kill adult mosquitos] and used safer, non-toxic alternatives.

On the other hand, the pesticide spraying sickened thousands of people, some seriously. Immune-compromised illnesses such as common colds, flu and asthma increased over the last three years. (Officials do not yet have data for long-term health consequences.) Medical and public health personnel now report that they had been too afraid to speak out publicly against the dangers of pesticide exposure. Some report fearing the loss of research funds in a city led by a vindictive mayor. City health officials have disclosed off the record that public health services, which are being dismantled across the country under privatization, would not be funded.

They say that the only way to get funds for public health projects was to sell them as pertinent to national security and anti-terrorism, even though they knew better -- and this was BEFORE Sept. 11th, 2001. And so we saw the entire New York spray operation coordinated not by public health officials, but by the Office of Emergency Management housed in its now destroyed “bunker” on the 28th floor of 7 World Trade Center -- a building which, unbeknownst to most New Yorkers, also housed the largest CIA offices outside of Langley.

It was from this bunker on August 10, 2001, that Mayor Giuliani announced his decision to again blanket-spray entire areas of Staten Island, shortly followed with spraying in Queens and in Brooklyn, for the third consecutive year. The attorney for the No Spray Coalition, Joel Kupferman (NY Environmental Law and Justice Project), tried to attend the Mayor's press conference but was physically barred by armed marshals and threatened with arrest if he did not leave the building. Clearly, the Mayor did not want anyone asking pointed questions.

Previously, the Mayor had branded the No Spray Coalition and other opponents of the indiscriminate pesticide spraying “environmental terrorists” who “like to get you angry because it gets them on television.” Kupferman, along with other members of the No Spray Coalition and the NY Environmental Law & Justice Project, had successfully blocked a $267 million bid by Clarke Environmental Mosquito Control, Inc. to do the spraying last year.

City officials, led by Mayor Rudolph Giuliani, intentionally whipped up hysteria around the West Nile virus to circumvent civil liberties and normal environmental procedures, and to gain acceptance among large numbers of people for the indiscriminate spraying of Malathion and Pyrethroid pesticides over the largest urban population center and ecosystem in the country. No such crisis mode was ever established for the far more dangerous flu epidemics, which take the lives of some 2,000 New Yorkers every year, or ailments such as asthma with equally disproportional casualties when compared with the relatively scant few affected by West Nile encephalitis. Established, safety-oriented procedures advocated by anti-pesticide activists included: establishing a pesticide exposure hotline; developing environmental impact statements before going forward with the spraying; implementing non-toxic alternatives for controlling mosquitoes; and regularly testing affected areas for toxic pesticide residues; but these were given short shrift. “There's absolutely no danger to anyone from this spraying. ... There are some people who are engaged in the business of wanting to frighten people out of their minds,” the Mayor charged. (Newsday, 9/14/99)

Mayor Giuliani and then-Health Commissioner Neal Cohen repeatedly assured the citizenry that pesticide spraying was “safe.” Giuliani's statements so angered NY State Attorney General Eliot Spitzer that he felt compelled to write several letters admonishing the Mayor and other City officials against claiming that the pesticides were “safe”. The Attorney General warned that had private companies made those claims they would be in violation of federal and state law. On top of that, a secret memo issued last year by the NYC Police Department warned police officers (but not civilians) accompanying spray trucks to stay at least 25 feet away from the spray, wear protective clothing, keep the windows tightly shut, and avoid all contact with the pesticides, contradicting instructions given to police the previous year.

In 1999 and 2000, helicopters and spray trucks crisscrossed the entire metropolitan area, blanketing residential areas as well as swamps, beaches, wetlands, shopping malls, schools and parks. Helicopters buzzed below the tree line spraying the Malathion concoction over children playing in parks and people walking their dogs, strolling through the neighborhood, or even eating in outdoor restaurants. Heavy spraying also occurred over the NY City subways, sewer system, schools and daycare centers, and over or near open waterways, poisoning fish and marine life, and wreaking havoc with the delicate ecosystems on which our lives depend. Spray was released over lakes and rivers, and drifted into the Atlantic Ocean in reckless disregard for the warnings on the labels. This has become the basis for a lawsuit filed by the No Spray Coalition under the Clean Water Act. Joining the Coalition in the lawsuit are the National Coalition Against Misuse of Pesticides, Disabled in Action, Save Organic Standards-NY, many locals of the New York State Greens, and several individuals (myself being one of them). The suit is now being heard in Federal Court.

No effort at all was made to provide health services or even a hotline for people made sick from the spray. There was a notoriously undependable telephone “information center” set up by the NYC Department of Health which was answered by non-unionized, ill-informed operators in Pennsylvania, who had no idea what was going on and had no knowledge or medical instructions for those calling to say they had been exposed to pesticides. There were no precautions taken to warn asthma sufferers, people with compromised immune systems, cancer survivors, people with allergies, or those facing repeated exposure (homeless people, subway workers, spray truck drivers), let alone everyone else about the dangers of the spraying. By the end of the second year, many of the inner-city workers hired to do the spraying were diagnosed by doctors at Mount Sinai hospital with pesticide poisoning. One worker who had just submitted dramatic testimony against the company was found murdered in an east-Brooklyn elevator, with 17 bullets in his body and his wallet still in his pocket. Under enormous pressure brought to bear by No Spray Coalition activists, attorney Kupferman and NY Daily News journalist Juan Gonzalez, the company, Clarke Environmental, was fined $1 million by the NY State Department of Environmental Conservation for jeopardizing the health and safety of the workers under its insecticide spray program. A study completed last year by the chief pathologist for New York State, Ward Stone, revealed that the vast majority of dead birds autopsied over the past few years had been killed not by the West Nile Virus, as we were originally led to believe, but by pesticide poisoning.

. . . .

Federal, State and Local authorities were responding, so they told us, to a “health emergency” in New York City triggered by 61 cases of encephalitis in the greater metropolitan area in 1999, which resulted in the deaths of seven elderly people who, we again were told, were infected by mosquitoes (known in enviro-military parlance as “vectors”) carrying the allegedly deadly West Nile virus. These mosquitoes breed when the weather is warm and moist. Yet, the Summer and Fall of 1999 were among the dryest on record in New York; there were relatively few mosquitoes.

There is still no independent confirmation of the cause of death of the handful of people said to have died in this “emergency,” nor any public release of their medical histories or autopsy reports that may indicate death from other causes. (Some were reported to be taking chemotherapy for existing cancers. Others may have had recent flu shots, which itself can trigger an encephalitic reaction. ALL of them had some pre-existing condition which compromised their immune system.) In fact, two years after the purported “health emergency” or “crisis” began, we learned that no health emergency was ever officially declared by the City or State.

But that didn’t stop officials from the City and the federal Centers for Disease Control from ordering the City sprayed, repeatedly, with a toxic barrage of Fyfanon ULV (96.5 percent pure, extremely fine lung-penetrating droplets of Malathion) from helicopters, and the synthetic pyrethroids Scourge (Resmethrin) and Anvil (Sumithrin), both of which contained large amounts of “helper” chemicals such as Piperonyl Butoxide, a “synergist” which in humans as well as in insects impairs the endocrine system and slows the body from breaking down and excreting the pyrethroids, dramatically increasing their toxicity. The FDA lists piperonyl butoxide as a cancer-causing agent. Also in the toxic mix are unlabeled “inert” ingredients, mostly petroleum and benzene-related distillates.

Malathion has received most of the attention of health professionals. But pyrethroids are extremely dangerous to asthmatics, people with allergies, and those with compromised immune systems. The pyrethroids (Scourge/Resmethrin, Anvil/Sumithrin and also, last year, Permethrin), are endocrine disruptors that mimic estrogen and other hormones. New test tube studies have linked pyrethroids to cancer.

Spray trucks rumbled down every block sickening thousands of New Yorkers and tourists; the spray killed whole regions of honey bees, birds, lobsters, frogs, crabs, clams and fish, as well as beneficial insects such as butterflies, bees and dragonflies, which eat mosquitoes. The mosquito’s natural predators are affected far more than mosquitoes, whose shorter reproductive cycle allows them to quickly develop immunities to the toxins.

E-Mail Distributed Summer 2002

>From: Environmental Risk Analysis Program <envrisk@cornell.edu>

>Subject: WNV Update Aug 5, 2002--91 Human cases, 4 deaths reported

>

>Louisiana declares State of Emergency for West Nile Virus

>

>At least 91 human cases of WNV have been reported in 2002, with 4

confirmed deaths in Louisiana. Human cases are from Alabama (1,

>preliminary), Louisiana (58), Mississippi (22), and Texas (10).

>

>Reports of equine cases are inconsistent as of August 5, 2002, but it

>appears that 90 cases have been reported including 23 cases scattered

>throughout Florida, 1 from SW Illinois, 3 from central Kentucky, 16 cases

>from southern Louisiana, 4 confirmed, 10 suspected cases from Minnesota,

>15 cases from Mississippi, 1 from Nebraska (preliminary), 1 from eastern

>North Dakota, 4 from South Dakota 1 from eastern Tennessee, and 20 from

>eastern Texas.

>

>West Nile Virus has passed the 103rd meridian on its trek west, now

>detected as far west as Butte Co, South Dakota (on Wyoming/Montana

>borders) and Russell, Manitoba, Canada (on the 101st meridian). Thus far

>in 2002, West Nile Virus has been detected in birds, mosquitoes, humans,

>and/or horses in at least 34 states and Washington DC in the US; as well

>as in Manitoba, Ontario, and Quebec provinces in Canada; and in mosquitoes

>in the Negev Desert in Israel. Its range has expanded in each of the 4

>years since the initial North American outbreak in 1999, and is expected

>to continue to expand in 2002. In 2002, WNV has been detected already in

>seven states where it has never been previously detected (Minnesota,

>Nebraska, North Dakota, Oklahoma, South Dakota, Texas, and West Virginia).

>

>In 2002, WNV has been detected in the following states in the US, as well

>as Washington DC (Arkansas, Alabama, Connecticut, Delaware, Florida,

>Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland,

>Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New

>Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio,

>Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee Texas,

>Virginia, West Virginia, and Wisconsin).

>

>STATE UPDATES SINCE AUG 1, 2002

>

. . . .

>LOUISIANA--A State of Emergency was declared in LA because 58 human cases

>of WNV have been confirmed including 4 deaths.  Human cases have been

>found throughout the entire state.  Of the 58 cases, 10 have been in people under 30 years of age.

>Deaths:

>1. 83-yr-old woman from Baton Rouge

>2. 53-yr-old man from Folsom (St. Tammany Parish)

>3. 75-yr-old man from Baton Rouge

>4. 72-yr-old man from Iowa (Calcasieu Parish)

>http://www.oph.dhh.state.la.us/newsitem8b18.html?NID=263

>>

>MICHIGAN--Eighteen counties have detected WNV throughout Michigan in

>2002.  New detections in Berrien Co, Clinton Co, Midland Co, and St. Clair Co.

>

>NEW HAMPSHIRE--WNV was detected for the first time this year in a bird

>found in Nashau (Hillsboro Co, S. NH) found July 26, 2002.

>

>NEW YORK--Twenty-seven counties have detected WNV in 2002.  New detection

>in Clinton Co (NE NY, on Canadian border).

>

>~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

>Nicole Kordziel, ERAP Intern

>Environmental Risk Analysis Program (ERAP)

>Center for the Environment

>213 Rice Hall, Cornell University

>Ithaca, New York USA 14853