The opinion of the court was delivered by: MORAN
JAMES B. MORAN, UNITED STATES DISTRICT JUDGE
We rule herein on defendant Chemlawn Corporation's (Chemlawn) motion to dismiss, or, in the alternative, to stay proceedings. Defendant invokes the doctrines of primary jurisdiction and the exhaustion of administrative remedies requirement. We recognize that plaintiff's suit involves issues best determined by an administrative agency but nonetheless choose not to stay these proceedings.
Plaintiff Elyse Roberts (Roberts) was initially a member of a class action brought in the Eastern District of Pennsylvania. Individual plaintiffs were subsequently referred to the proper venues, and Robert's action eventually arrived here. She relies on the original class complaint before this court.
Chemlawn asserts that "plaintiff seeks to have this court function as a scientific tribunal and decide a virtually endless list of issues of law and fact regarding the uses and effects of at least eight pesticide products" (mem. in supp. of def. mo. to dism. at 3). Chemlawn therefore requests that this court dismiss or, in the alternative, stay these proceedings pending a determination of many of the factual issues by the United States Environmental Protection Agency (EPA).
Primary jurisdiction "applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. . . ." United States v. Western Pacific Railroad Co., 352 U.S. 59, 64, 1 L. Ed. 2d 126, 77 S. Ct. 161 (1956). It is not, as defendants would have it, an automatic procedure. Rather, "[a] court considering deferring to an agency's primary jurisdiction must weigh the benefits of obtaining the agency's aid against the need to resolve the litigation expeditiously and may defer only if the benefits of agency review exceed the costs imposed on the parties." Wagner & Brown v. ANR Pipeline Co., 837 F.2d 199, 201 (5th Cir. 1988) (citations omitted). We agree that deferral to the expertise of the EPA on the technical aspects of plaintiff's case would be far preferable,
even though the EPA cannot provide every remedy sought by plaintiff.
However, the desire to employ this expertise must be weighed against the harm that might occur while awaiting an administrative decision, a delay which appears likely were defendant's motion granted.
As far as this court can tell, the EPA will not complete its assessment of non-agricultural pesticides until the beginning of the next century. See General Accounting Office, Nonagricultural Pesticides, Risks and Regulations, 26 (April 1986) (Nonagricultural Pesticides) The EPA's expedited review program (special review) appears backlogged as well.
According to GAO estimates, "special reviews completed through October 1986 have generally taken two to six years or longer to complete." Pesticides, EPA's Formidable Task to Assess and Regulate Their Risks, 105 (April 1986) (EPA's formidable task) (emphasis added). And while the special review process has allegedly been expedited, we question whether that action will significantly reduce the duration of the proceedings given the increased workload of the special review branch. See id. at 108. Our fears appear confirmed by those in a position to know: "The Chief of EPA's Special Review branch told us [the GAO] that, while special reviews have taken too long, it is difficult to speed up the special review process when EPA is dealing with so much uncertainty with respect to quality of risks and benefits data, and with competing resource demands from other pesticide program activities" (EPA's formidable task at 105-106).
Furthermore, the entire special review alternative presupposes a decision by the EPA to act on Roberts' request. Under 7 U.S.C. § 136d only the EPA administrator can initiate a special review
(mem. in supp. of pl. resp. at 17). Roberts asserts that the EPA administrator might refuse to initiate the relevant proceedings. Defendant admits that "technically plaintiff cannot initiate a review of the relevant pesticides . . ." (defs. reply mem. at 10), but contends that an attempt must be made before this court can properly hear the case. We agree, but only to a point.
Defendant submits precedent specific to EPA review to support its motion to dismiss, and first points us to In Re "Agent Orange" Product Liability Litigation, 475 F. Supp. 928 (E.D.N.Y. 1979). Judge Weinstein therein dismissed plaintiffs' suit because he felt that primary jurisdiction properly laid with the EPA. In doing so, however, Judge Weinstein conceded that "no fixed formula exists for applying the doctrine of primary jurisdiction. In every case, the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation" (emphasis added). Id. at 931, quoting United States v. Western Pacific Railroad Co., 352 U.S. at 64. More importantly, deference in Agent Orange was paid to a then ongoing EPA review of the alleged health harms of Agent Orange.
It is axiomatic that "the advisability of invoking primary jurisdiction is greatest where the issue is already before the agency." Mississippi Power & Light Co. v. United Gas Pipe Line Co., 532 F.2d 412, 420 (5th Cir. 1976). The pendency of EPA proceedings changed the nature of the Agent Orange case:
This court is not deaf to plaintiff's pleas for prompt equitable relief against an allegedly serious environmental hazard, but neither is the EPA. By suspending the use of 2, 4, 5-T on forestry, rights of way, and pasture of land, and by announcing its intention to hold hearings on the remaining uses of 2, 4, 5-T, the EPA has demonstrated its recognition of these hazards, and its willingness to take prompt action where necessary to protect the public in whole or in part. By ...