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

November 23, 2010

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

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

Judge David L. Bazelon, Chief Judge, U.S. Court of Appeals, District of Columbia Circuit

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

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

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

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

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

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

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

Remanded for further proceedings consistent with this opinion.

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

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

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

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

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


Books dead? Barnes & Noble for sale

August 4, 2010

News of the death of books panicked some stockholders in Barnes & Noble.  Responding to those concerns, the company put itself up for sale (Wall Street Journal article).

The pen didn’t kill the book.  The typewriter didn’t kill the book.  The pencil didn’t kill the book.  Radio didn’t kill the book.  Movies didn’t kill the book.  Television didn’t kill the book.  Telephone didn’t kill the book.  Personal computers didn’t kill the book (much to the chagrin, perhaps, of the designers of the Apple Lisa — and if you remember that, and it’s coming with all the works of Shakespeare loaded on the harddrive, you’re older than your colleagues think you are).

In “A Dangling Conversation,” recorded in 1966 by Simon and Garfunkel, Paul Simon’s lyrics say, “We speak of things that matter/With words that must be said./’Can analysis be worthwhile?/Is the theatre really dead?'”  Some other questions are similarly and equally unstuck in time, and I think “Is the book dead?” is one of them.

So long as there are books, and readers who demand books, there is a need for a bookstore.  They may move to our libraries, but we’ll still need and want them.

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Quote of the moment: David Brooks, books vs. internet

July 12, 2010

Wisdom comes in keen insights:

These different cultures foster different types of learning. The great essayist Joseph Epstein once distinguished between being well informed, being hip and being cultivated. The Internet helps you become well informed — knowledgeable about current events, the latest controversies and important trends. The Internet also helps you become hip — to learn about what’s going on, as Epstein writes, “in those lively waters outside the boring mainstream.”

But the literary world is still better at helping you become cultivated, mastering significant things of lasting import. To learn these sorts of things, you have to defer to greater minds than your own. You have to take the time to immerse yourself in a great writer’s world. You have to respect the authority of the teacher.

Right now, the literary world is better at encouraging this kind of identity. The Internet culture may produce better conversationalists, but the literary culture still produces better students.

It’s better at distinguishing the important from the unimportant, and making the important more prestigious.

David Brooks, “The Medium is the Medium,” New York Times, July 9, 2010, page A23


Quote of the moment: Books as lighthouses in the dark sea of time

July 3, 2010

Jeffrey Robbins, a human character in the animated cartoon series,

Jeffrey Robbins, a human character in the animated cartoon series, “The Gargoyles”

The written word is all that stands between memory and oblivion. Without books as our anchors, we are cast adrift, neither teaching nor learning. They are windows on the past, mirrors on the present, and prisms reflecting all possible futures. Books are lighthouses, erected in the dark sea of time.

Jeffrey Robbins, a character in the cartoon series, “The Gargoyles”

Now available on Youtube.  To get the quote above, to go to 21:30 in this video:

Tip of the old scrub brush to James Kessler.


Idle thinking, among the bookporn

March 28, 2010

Night out for the boys — well, for Kenny and me — while Kathryn had some of the girls over.

Kenny introduced me to a Dallas sushi venue, Asian Mint.  His appearing-to-be deep-fried Texas Roll was a pleasant, crunchy blend of oriental and Texas.  The mango sauce added a sweet smoothness.  My more standard tuna came with a little internal heat — the wasabi perfectly blended (Kenny is the one who doesn’t like horseradish heat, having somehow missed that gene from my grandfather).

Asian Mint is a Dallas hit (“Asian fusion”).  It’s not Salt Lake City’s Takashi, but for 1,000 miles from the Wasatch Front, it’s a good place for Saturday night.  We got there early.  Families were lined up waiting when we left.

We closed off the night at Half-Price Books, at the store on Northwest Highway fans and employees fondly deem “the mother ship.”  (Years ago, across the street to the east, the store was in an old, converted restaurant which had a pirate’s ship inside; the store kept the ship as a kids’ reading area.  Was that the origin of “mother ship?”)

Books?  Today?

I don’t read enough.  20 years ago I found a study that said if you read one book a month, 12 books a year, you’re in the 99th percentile of readers.

The coffee mug with Einstein on it says “Coffee makes me smart.”  Kenny, our family’s most-tech savvy early-adopter — a high commendation in a family where Mom and Dad have been in computers since mainframes were the way to go — agreed that it’s more likely books that make us smart.  We don’t read enough, but we stay in the 99th percentile.

What an easy, easy way to get ahead!  Get a book:  Read it.

Michael D. Green, the real estate impresario for Murray Hill who formerly headed the Louis August Jonas Foundation when I had so much fun there, used to say that he was not educated, but he read the book reviews.  Reading the book reviews would be better than not knowing.  At a Manhattan cocktail party he could hold his ground with just about anyone.  I’ve never found a topic on which he didn’t know something, usually cutting-edge.  His book recommendations are always epiphanies.

Bookstores are full of them, epiphanies.

So are libraries.  Idle Think’s “bookporn” series cheers me up enormously, most of the time.


December 30 – Happy Hubble Day 2009!

December 30, 2009

Ultraviolet image of the Andromeda Galaxy, first known to be a galaxy by Edwin Hubble on December 30, 1924 - Galaxy Evolution Explorer image courtesy NASA

Ultraviolet image of the Andromeda Galaxy, first known to be a galaxy by Edwin Hubble on December 30, 1924 - Galaxy Evolution Explorer image courtesy NASA

Today is a good day to celebrate the universe in all it’s glory – December 30. This year, the International Year of Astronomy, makes it a double celebration.

On December 30, 1924, Edwin Hubble announced he’d discovered other galaxies in distant space.  Though it may not have been so clear at the time, it meant that, as a galaxy, we are not alone in the universe (whether we are alone as intelligent life is a separate question).  It also meant that the universe is much, much bigger than most people had dared to imagine.

Logo for International Year of Astronomy 2009 - Astronomy2009.org

Go to Astronomy2009.org

Below, mostly an encore post.

Last year for Hubble Day, Wired picked up on the story (with a gracious link to 2007’s post here at the Bathtub). Wired includes several links to even more information, a good source of information.  See Wired’s 2009 post here.

Hubble was the guy who showed us the universe is not only bigger than we imagined, it’s probably much bigger and much more fantastic than we can imagine. Hubble is the guy who opened our imaginations to the vastness of all creation.

How does one celebrate Hubble Day? Here are some suggestions:

  • Easier than Christmas cards: Send a thank-you note to your junior high school science teacher, or whoever it was who inspired your interest in science. Mrs. Hedburg, Mrs. Andrews, Elizabeth K. Driggs, Herbert Gilbert, Mr. Willis, and Stephen McNeal, thank you.
  • Rearrange your Christmas/Hanukkah/Eid/KWANZAA lights in the shape of the Andromeda Galaxy — or in the shape of any of the great photos from the Hubble Telescope (Andromeda Galaxy pictured above; Hubble images here)

    A few of the images from the Hubble Telescope

    A few of the images from the Hubble Telescope

  • Go visit your local science museum; take your kids along – borrow somebody else’s kids if you have to (take them along, too)
  • Spend two hours in your local library, just looking through the books on astronomy and the universe
  • Anybody got a good recipe for a cocktail called “The Hubble?” “The Andromeda?” Put it in the comments, please

The encore post, from 2007:

December 30, 1924, Edwin Hubble announced the results of his observations of distant objects in space.

PBS

Edwin Hubble - source: PBS

In 1924, he announced the discovery of a Cepheid, or variable star, in the Andromeda Nebulae. Since the work of Henrietta Leavitt had made it possible to calculate the distance to Cepheids, he calculated that this Cepheid was much further away than anyone had thought and that therefore the nebulae was not a gaseous cloud inside our galaxy, like so many nebulae, but in fact, a galaxy of stars just like the Milky Way. Only much further away. Until now, people believed that the only thing existing outside the Milky Way were the Magellanic Clouds. The Universe was much bigger than had been previously presumed.

Later Hubble noted that the universe demonstrates a “red-shift phenomenon.” The universe is expanding. This led to the idea of an initial expansion event, and the theory eventually known as Big Bang.

Hubble’s life offered several surprises, and firsts:

Hubble was a tall, elegant, athletic, man who at age 30 had an undergraduate degree in astronomy and mathematics, a legal degree as a Rhodes scholar, followed by a PhD in astronomy. He was an attorney in Kentucky (joined its bar in 1913), and had served in WWI, rising to the rank of major. He was bored with law and decided to go back to his studies in astronomy.

In 1919 he began to work at Mt. Wilson Observatory in California, where he would work for the rest of his life. . . .
Hubble wanted to classify the galaxies according to their content, distance, shape, and brightness patterns, and in his observations he made another momentous discovery: By observing redshifts in the light wavelengths emitted by the galaxies, he saw that galaxies were moving away from each other at a rate constant to the distance between them (Hubble’s Law). The further away they were, the faster they receded. This led to the calculation of the point where the expansion began, and confirmation of the big bang theory. Hubble calculated it to be about 2 billion years ago, but more recent estimates have revised that to 20 billion years ago.

An active anti-fascist, Hubble wanted to joined the armed forces again during World War II, but was convinced he could contribute more as a scientist on the homefront. When the 200-inch telescope was completed on Mt. Palomar, Hubble was given the honor of first use. He died in 1953.

“Equipped with his five senses, man explores the universe around him and calls the adventure Science.”

That news on December 30, 1924, didn’t make the first page of the New York Times. The Times carried a small note on February 25, 1925, that Hubble won a $1,000 prize from the American Academy for the Advancement of Science.

(Does anyone have a suitable citation for that video? Where did it come from? Who produced it? Is there more somewhere?)

Happy Hubble Day! Look up!

Resources:

Alert others to look up and toast Hubble:

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Stand up for good history in Texas

December 17, 2009

Here’s an education and Texas issue I’ve not done justice to:  The Texas State Board of Education is working to gut social studies curricula in Texas, with a special vent on history, which they appear to think is not fundamentalist Christian enough, and economics, where they think “capitalism” is, somehow, a dirty word.

Do I exaggerate?   Very little, if at all.  Really.

There’s a lot to say.  I may have another post on it this week.  In the meantime, the indefatigable Texas Freedom Network works to organize for the hearing on the issue in January.  SBOE hopes it will be a quiet, non-confrontational meeting, and they will do whatever they can to prevent Texans from telling them to have good history standards that make great students.  So it’s important that you speak up — especially if you’re a Texan.  Here’s what TFN said in an e-mail alert:

Make Your Voice Heard at January Public Hearing

The process of revising social studies curriculum standards for Texas public schools is moving into a critical stage. And a public hearing the board has scheduled for January may be the only opportunity for you to speak out against the far right’s efforts to corrupt standards for history, government and other social studies classes.

The final drafts of the proposed standards prepared by writing teams made up of teachers, academics and other community members are reflective of mainstream academic scholarship in the various subject areas. It is clear that members of these writing teams largely resisted intense political pressure from far right, rejecting attempts to remove key civil rights figures and make other politically motivated revisions. (See the Background section at the bottom of this e-mail for a more detailed account of the politicization of this curriculum process.)

But as with science and language arts, far-right SBOE members are already plotting to undo the work of the writing teams of social studies.

Take Action

The State Board of Education so far has scheduled only one public hearing on the proposed standards. That hearing is likely to occur either on January 13 or January 14 in Austin.

If you are interested in speaking at the hearing, please click here. TFN will help you register to speak before the board and be an effective voice against efforts to politicize our children’s classrooms.

This may be the only opportunity the board provides for Texans to speak out on the proposed standards. If we are to prevent far-right SBOE members from turning social studies classrooms into tools for promoting political agendas, then it’s critical that the board hears from people like you! Click here to sign up for more information on how to testify in January.

___________________________________________________

Background on Social Studies Review Process to Date

Earlier this year, TFN exposed and derailed several attempts by the far right to hijack the social studies curriculum revision process. Members of the state board – or their appointees to review panels and writing teams – tried at various times to:

  • Remove civil rights champions like César Chávez and Thurgood Marshall from the standards, calling them poor examples of citizenship
  • Turn Joseph McCarthy – who discredited himself and dishonored Congress with his infamous Red-baiting smear campaign in the 1950s – into an American hero
  • Rewrite history and portray America’s Founders as intending to establish a Christian nation with laws based on a fundamentalist reading of the Bible

Members of the writing teams largely rejected these fringe ideas in the final drafts of the standards they submitted to the board. Chávez and Marshall remain in the curriculum. The American history standards do not whitewash the damaging history of McCarthyism. And under the proposed standards students would still learn that the Founders created a nation in which all people are free to worship – or not – as they choose without coercion or interference by government.

We must ensure that the board adopts curriculum standards that reflect mainstream academic scholarship in social studies. This is vitally important because the results of this decision will be reflected in the next generation of social studies textbooks around the country.

Click here to let TFN know you are willing to testify at the state board.

Spread the word even farther — help save history, in Texas:

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