IN RE: Environmental Protection Agency Pesticide Listing Confidentiality Litigation

PRR | Case MDL No. 286 Document2 Filed 05/05/15 Page	1 of 7
JUDICIAL PANEL ON
MUL TIS TRY ee he
BEFORE THE JUDICIAL PANEL MULTICISTRICT LITIGATION
C FILEDON :
MULTIDISTRICT LITIGATION JUL 20 1977
IN RE ENVIRONMENTAL PROTECTION ) FAR Fear	H HE
AGENCY PESTICIDE LISTING ) DOCKET NO. 286
CONFIDENTIALITY LITIGATION )
OPINION AND ORDER
BEFORE JOHN MINOR WISDOM, CHAIRMAN, AND EDWARD WEINFELD, EDWIN A.
ROBSON, WILLIAM H. BECKER*, JOSEPH S. LORD, III*, STANLEY A. WEIGEL,
AND ANDREW A. CAFFREY*% JUDGES OF THE PANEL
PER CURIAM
This litigation includes nine actions pending in four
federal districts: three in the Northern District of California;
J four in the District of Delaware; and one each in the Eastern
District ofMichigan and the Southern District of New York. The
actions have been brought by companies which are engaged in the
business of developing, producing, and marketing pesticides for
agricultural and industrial use. The Administrator of the
Environmental Protection Agency (EPA) is a defendant in all actions
and the EPA itself is a defendant in several of the actions.
The Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA), 7 U.S.C. §136, et seq., was enacted to control the registra-
*/ Judges Becker and Lord took no part in the consideration or
decision of this matter.
**/ Judge Caffrey recused himself and took no part in the
® consideration or decision of this matter.

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tion, distribution, and use of pesticides. Under FIFRA, before a
@ pesticide may be distributed, it must be registered by the EPA,
and the applicant for registration must submit test data upon
which the pesticide's safety and efficiency may be determined.
Following registration of a pesticide, FIFRA requires the
Administrator of the EPA to make public the data on which he
or she relied in granting registration, except for any data
that is a trade secret or commercial or financial information
which is privileged or confidential. If the Administrator proposes
to release information which a registrant believes is exempt
from disclosure, the Administrator must notify the registrant,
who may then institute an action in federal district court for
declaratory relief. Each plaintiff in these actions seeks a
@® declaratory judgment that certain data which has been submittedto the EPA in connection with a pesticide application 1s exempt
from disclosure. Plaintiffs also request an injunction restraining
the EPA from disclosing the information. The complaint in the
Eastern District of Michigan action contains additional counts
which challenge the registration, reregistration, and
supplemental registration requirements fox pesticides imposed
by the EPA under various statutes.
pursuant to 28 U.S.C. §1407(c) (i) and Rule 8, R.P.J.P.M.L.,
65 F.R.D. 253, 258-59 (1975), the Panel issued an order toc show
cause why all nine actions should not be transferred to a single
district for coordinated or consolidated pretrial procesdings.
@® 1/ The pesticide rormulators Association (PFA) suggests that the	Panel include two additional actions in this litigation -~ Mobay
Chemical Corp. v. Russell E. Train, et al., W.D. Missouri, No.
76-CV-238-W-4 and No. 76-CV-351-W-1-4. Since the Panel is denying
transfer in this litigation, PFA's request is moot.

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All plaintiffs oppose transfer of these actions. The defendants
® favor transfer. We find that these actions raise few if any
common questions of fact and that transfer under Section 1407
would not serve the convenience of the parties and witnesses or
promote the just and efficient conduct of the actions. Accordingly,
we deny transfer.
The defendants argue in favor of transfer that the principal
issue which is common to all actions is whether the EPA has
properly interpreted the disclosure provisions of FIFRA. This
common question, they urge, can best be disposed of by unified
‘proceedings on motions to dismiss in all actions before a single
forum. The defendants admit, however, that this issue is
primarily a question of law. If the motions to dismiss are
® denied, defendants maintain, these actions would share questions
of fact concerning both industry-wide practices regarding
pesticides and the practices of the EPA under FIFRA.
These arguments are not persuasive. On the basis of the
record before us, the predominant, and perhaps only, common aspect
in these actions is a legal question of statutory interpretation.
Any factual issues are primarily, if not entirely, unique questions
pertaining to the specific data sought to be exempt from
disclosure in each action. Thus, since these actions involve a
common question of law and share few, if any, questions of fact,
transfer under Section 1407 is inappropriate. See In re Natural
[| |

co Case MDL No. 286 Document2 Filed 05/05/15 Page	4 of 7 |
Gas Liquids Regulation Litigation, ____F. Supp.__ __, __
( (FJ.P.M.L., filed June 15, 1977); In re U.S. Navy Variable
Reenlistment Bonus Litigation, 407 F. Supp. 1405, 1407 (J.P.M.L.
1976); In re Eastern Airlines, Inc. Flight Attendant Weight
Program Litigation, 391 F. Supp. 763, 764 (J.P.M.L. 1975).
IT IS THEREFORE ORDERED that the order to show cause
pertaining to the actions listed on the following Schedule A
be, and the same hereby is, VACATED.
®
e
® |

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MDL-286 -—- IN RE ENVIRONMENTAL PROTECTION AGENCY PESTICIDE
® LISTING CONFIDENTIALITY LITIGATION
SCHEDULE A
NORTHERN DISTRICT OF CALIFORNIA
Chevron Chemical Company v. Russell E. Civil Action
Train, et al. No. C76-1552-RFP
Chevron Chemical Company v. Russell E. Civil Action
Train, et al. No. C76-1768~RHS
Chevron Chemical Company v. Russell E. Civil Action
Train, et al. No. C76-2222-SC
DISTRICT OF DELAWARE
Shell 0il Co., et al. v. Russell E. Train, Civil Action
et al. No. 76-239
E. I. duPont de Nemours & Co. Vv. Russell Civil Action
E. Train, et al. No. 76-288
0... 0il Company v. Russell E. Train, Civil Actionet al. No. 76-305
Shell 0il Company v. Russell E. Train, Civil Action
et al. No. 76-324
EASTERN DISTRICT OF MICHIGAN
The Dow Chemical Co. v. Russell E. Train Civil Action
No. 76-10087
SOUTHERN DISTRICT OF NEW YORK
Amchem Products, Inc., et al. v. Russell Civil Action
E. Train No. 76 Civ. 2913

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CIAL PATEL	OR
DOCKET NO. 286 Hl Toor iHTIGATION® BEFORE THE JUEIDIAL PANEL ON MULTIDISTRICT LITIGATION ~~
| Hoy 23 11
TO COUNSEL FOR PARTIES INVOLVED IN THE ENVIRONMENTAL FRQEEGTIOWRD
AGENCY PESTICIDE LISTING CONFIDENTIALITY LITIGATION CLERK GF THE PANEL
ORDER TO SHOW CAUSE
You and each of you are hereby ordered to show cause
why the actions listed on the attached Schedule should not
be transferred pursuant to 28 U.S.C. §1407 to a single
district for coordinated or consolidated pretrial proceedings.
Responses to this order shall conform with the require-
ments of Rule 8, of the Rules of Procedure of the Judicial
Panel on Multidistrict Litigation, 65 F.R.D. 253 (1975).
You are further notified that the issuing of this order
by the Panel does not affect or suspend orders and discovery
proceedings in the district courts in which said multidistrict
litigation is pending. RPJPML (Rule 16)
® FOR THE PANEL:
\ wns We WD Ei< Manan ISQY ver
John Minor Wisdom
Chairman :
Attachment

RE Case MDL No. 286 Document 2 Filed 05/05/15 Page 7 of 7
® SCHEDULE A DOCKET NO. 286
NORTHERN DISTRICT OF CALIFORNIA I
Chevron Chemical Company v. Russel E. Train, Civil Action
et al. No. C76~1552-RFP
Chevron Chemical Company v. Russell E, Train, Civil Action
et al. No. C76~1768~-RHS
Chevron Chemical Company v. Russell E. Train, Civil Action
et al. No. C76-2222-SC
DISTRICT OF DELAWARE
Shell 0il Co., et al. v. Russell E. Train, Civil Action
et al. No. 76-239
E. I. Du Pont De Nemours & Co. V. Russell E. Civil Action
Train, et al. No. 76-288
Shell oil Company v. Russell E. Train, et al. Civil Action
: No. 76-305
Shell Oil Company v. Russell E. Train, et al. Civil Action
® No. 76-324
: EASTERN DISTRICT OF MICHIGAN
The Dow Chemical Co. v. Russell E. Train Civil Action
No. 76-~10087
SOUTHERN DISTRICT OF NEW YORK :
National Agricultural Chemicals Assn., et al. v. Civil Action
Russell E. Train No. 76 Civ. 2913