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Court Rules RoC Plaintiff Has Standing But Defers to Agency on Interpretation of Listing Criteria

In a 12-page opinion issued September 30, 2000, U.S. District Court Judge Emmet Sullivan ruled that a California PVC manufacturer satisfied the legal requirements for standing, noting that publication of the proposed upgraded listing of dioxin as a "known human carcinogen" threatens the company with actual injury. The court ruled that Brevet Industries has met the "reasonable concern" test for injury-in-fact, as established in the recent Supreme Court case, Friends of the Earth v. Laidlaw. The court also concluded that Brevet's showing that the RoC is "likely to be used by the anti-dioxin movement" satisfied the necessary element of causation. The court held that a ruling preventing the publication "might stave of the effects of the attack on dioxin for a time".

The court nevertheless deferred to the agency's interpretation on the revised RoC listing criteria, noting that the agency was entitled to substantial deference in reading its own rules. The court's opinion did not attempt to distinguish cases plaintiffs had cited holding that such deference is not due where there is contemporaneous evidence of a contrary agency intent, nor did it discuss the documentary materials plaintiffs had submitted in this regard.

Significantly, the court's ruling implicitly rejected a threshold argument the government had advanced that the RoC, as a purely informational document, is simply not reviewable. The decision thus may have important implications for judicial review of similar agency actions, including risk assessments.

Plaintiffs have filed notice of their intent to appeal the decision to the D.C. Circuit Court of Appeals. Plaintiffs also are seeking an injunction staying publication of the upgraded dioxin listing while that appeal is pending.

The complete 9th RoC was published in May 2000, with a footnote in the "reasonably anticipated human carcinogen" dioxin listing stating that a proposed upgrade was in litigation.

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