Foundation on Economic Trends v. Heckler/Concurrence MacKinnon

MacKINNON, Senior Circuit Judge (concurring).

I am of opinion that the Foundation should have made its original application to NIH. I do not agree that the failure to exhaust can be disposed of by the cases cited holding that exhaustion is "ultimately an exercise of judicial discretion." Opinion supra, 156. This is not a case of just failure to exhaust in a pending proceeding before an agency, but a case of a complete failure of the Foundation to present any claim or objection whatsoever to the agency -- NIH. Thus, the normal exhaustion cases where the parties have appeared before the agency are not applicable. However, since the issues in this case are of great importance, new and novel I do not dissent because we are remanding the major issues in the case to the agency where what should have been done by all parties will now be done, and we are reversing [p161]  in other major respects. I have the following additional comments:

I can understand how the RAC scientists who are knowledgeable in this field of genetic engineering would approve the experiment by a vote of 19-0 with no abstentions. It would seem an experiment that releases into the environment organisms substantially the same as some already living there, and subject to the same naturally occurring controls, would present no risk. However, the general public and those who have to pass on this action are not knowledgeable in this field and they are easily frightened by new scientific experiments and their possible consequences. It is such lay concerns that must here be satisfied by Environmental Assessments and Environmental Impact Statements. There is considerable merit, moreover, in having all the environmental considerations set forth and discussed in one document rather than compelling those who review such matters to look through the nooks and crannies of a very extensive record to see that all environmental considerations were satisfied. The present record does indicate that those who participated at all stages of this project were concerned with and did consider many, but not all environmental issues, but the proof thereof is scattered throughout the record. An Environmental Assessment or an Environmental Impact Statement would present the consideration of all relevant environmental issues in one document that would not only ease lay concerns, but facilitate review as well.

We would undoubtedly have had a better record in this connection if the Foundation on Economic Trends had not failed to raise its objections while the matter was pending before the National Institutes of Health. Due notice of the pendency of the matter was given in the Federal Register and comment was invited, but none was forthcoming. Had the objections of the Foundation been alertly raised before the agency, the district court and this court would undoubtedly have had a better record to consider and might even have been spared the necessity of ruling on the case. The RAC scientists, by their original vote, had approved a more extensive release. But the closeness of the vote led them to reconsider. The experiment was then reduced in magnitude and in that form was unanimously approved by the RAC scientists. Had the Foundation submitted its objections to the agency, it is thus more than likely, given the demonstrated sensitivity of NIH and its scientists to such matters, that the University and the agency would have responded to any objections and the record here, if the Foundation were not satisfied, would have been more complete and useful. I am thus not so concerned about the fairness to the agency and to the litigants as I am that the Foundation's delay deprived this court of the normal administrative record and consideration by the district court that are required to meet the issues raised by the Foundation.

The Foundation's conduct also has delayed this vital experiment for a very considerable period of time. The use of delaying tactics by those who fear and oppose scientific progress is nothing new. It would, however, be a national catastrophe if the development of this promising new science of genetic engineering were crippled by the unconscionable delays that have been brought about by litigants using the National Environmental Policy Act and other environmental legislation in other areas. The protracted litigations involving the Alaska pipeline, nuclear power plants, and the Clean Air Act present only a few examples.

These concerns extend to the court's comments concerning the possibility of a Programmatic EIS (pp. 159-160). It is my opinion that because the possibilities of genetic engineering, an industry still in its infancy, extend to so many areas, and because the development of a programmatic EIS would be vulnerable to delaying tactics, composing a programmatic EIS at this time would be neither justified, practical, nor prudent.