Herbicides in the Pacific Northwest: A NEPA Success Story

When it came to the uncertainties of widespread pesticide use, several NEPA injunctions played a big role in an environmental victory.

Professional foresters were once trained to think in very few dimensions. Get the “right” species of tree growing on the “right” lands.  Grow them as fast as possible.  Cut them when merchantable.  Repeat.  After generations of upheaval, though, forestry as a profession changed—at least in most quarters—and the collateral damage of such methods was factored in much more carefully.

What role, if any, did NEPA play in that evolution?  It is hard to say.  But here’s an educated guess: possibly the biggest role the statute has ever played in reforming any standardized—and incredibly harmful—resource management regime.

phenoxy acid molecular structure

The story revolves around several lawsuits against the U.S. Forest Service (USFS) and Bureau of Land Management (BLM) in the Pacific Northwest.  In five different actions, plaintiffs sought and obtained injunctions against these agencies regarding their use of various “phenoxy” acids.  These are chemicals that kill “broad-leaved” plants like deciduous trees and shrubs while leaving “needle-like” leaved plants (like conifers) essentially unharmed.

The Forest Service, by this point a world leader in industrial silviculture, had this to say:

The phenoxy herbicides, especially 2,4-D and 2,4,5-T, are by far the most useful herbicides in silviculture. A major advantage of these herbicides is the great range of selective activity that can be obtained by changing carriers and by varying rates and seasons of application. None of the other herbicides allow such selective control. This versatility makes 2,4-D and 2,4,5-T invaluable in silviculture. Other phenoxy herbicides . . . control certain species but are not as effective as 2,4-D and 2,4,5-T on the broad spectrum of native shrubs and weed trees found on Pacific Northwest forest lands.

USDA FOREST SERVICE GENERAL TECHNICAL REPORT at 11 (PNW-37 1975) (citations omitted)

Though it wasn’t known when these herbicides were growing so indispensable to modern foresters, several of them are tainted with dioxins—extremely harmful compounds that are both acutely toxic and carcinogenic.  The proof for that last sentence came in a particularly gruesome episode of our history: the mass dumping of Agent Orange on the forests of Vietnam and Laos during the Vietnam War.  Agent Orange is a mixture of equal parts 2,4-D and 2,4,5-T, two phenoxy acids.

 

The Phenoxy Herbicide Cases

In hindsight, the use of dioxin-laden herbicides was a terrible forestry practice for a variety of reasons. At the time the NEPA challenges were being litigated, though, the presence of dioxin in all, some, or which of the herbicides was still hotly contested. Indeed, in 1977, at the outset of the cases, there was still latent uncertainty about TCDD’s (the principal dioxin constituent of the phenoxies) effects.  See Citizens Against Toxic Sprays, Inc. v. Bergland, 428 F. Supp. 908, 915-18 (1977).  EPA, the agency charged by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) with permitting the use of the herbicides on the basis of their safety and efficacy, was still years away from fully grasping the enormity of that task as to the phenoxy acids.  The first class action regarding Agent Orange was still years away.

The Environmental Impact Statement (EIS) done in connection with “vegetation management” in the region had been prepared in 1974-75 and another, more specific EIS had been prepared in 1976-77.  These EISs became the focus of attention in Bergland and the Ninth Circuit precedents on EIS adequacy quickly sharpened that focus.  Like most circuits by the late 1970s, the Ninth Circuit had held that an EIS was not necessarily inadequate for ignoring “remote and highly speculative consequences.”  See Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974).  It had also held that EISs were not inadequate just because experts disagreed about the environmental consequences of the proposed action.  See Life of the Land v. Brinegar, 485 F.2d 460, 472 (9th Cir. 1973).

What the Ninth Circuit hadn’t confronted to that point was an EIS that seemed to “cherry pick” the data and conclusions about subject risks which the agency preferred (gauging the agency’s preferences by its past practices) and to ignore or belittle any contrary data or findings.  And it was that deficit—that equally procedural and substantive mistake—which convinced U.S. District Judge Otto R. Skopil, Jr., that the USFS should be enjoined until it prepared a better EIS.  See 428 F. Supp. at 926.

The government had argued throughout the litigation that the plaintiffs were simply making the wrong type of objection; that FIFRA had charged EPA with deciding whether the herbicides were safe, not USFS or the BLM, and that an EIS on such questions wasn’t due from either of the two land management agencies.  The judge rejected the argument root and branch.

[T]he Forest Service [cannot] avoid its obligations under NEPA by arguing that any necessary scientific inquiry must be conducted by the EPA.  NEPA mandates a case-by-case balancing judgment on the part of federal agencies.  The only agency in a position to make such a judgment in a particular case is ‘the agency with overall responsibility for the proposed federal action—the agency to which NEPA is specifically directed.’”

428 F. Supp. at 927.

Following the phenoxy herbicide cases—and there were several—the USFS (if not BLM) undertook a much more sophisticated risk assessment of its herbicide uses in the Pacific Northwest (and elsewhere).  One advocate even came to the conclusion that

[a]s a result of taking these and other measures, the Forest Service has been changed by the information gathered during this NEPA process.  The agency preferred alternative is an entirely different program from the one the Forest Service defended in the federal courtrooms during 1977-84.  The new final EIS recognizes herbicides as problematic for many complex reasons. . . .  [T]he herbicide of fierce choice prior to 1984, 2,4-D, is reduced to last resort.

Mary H. O’Brien, NEPA As It Was Meant to Be: NCAP v. Block, Herbicides, and Region 6 Forest Service, 20 Envtl. L. 735, 739-40 (1990).

 

What Effect of NEPA Relief?

But what role did the NEPA injunctions in these cases really play in changing what had been—and still is in some quarters—a deeply entrenched practice, built from an agency’s faith therein and the scientific uncertainties that routinely complicate efforts to prove causation?  NEPA’s sponsors always thought that their uniquely structured statute would work passively, gradually, to change an agency’s “culture” and bend it toward the statute’s goals.  Did that happen in this case?

A follow-up post delves further into this question by considering the role that the Council on Environmental Quality’s “worst case” requirement played in the herbicide cases.  For these cases would be the last where the worst case requirement featured prominently (and possibly so productively).

{Image: aerial herbicide application}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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