The DDT Wars: Four Great Victories

Nearly five decades ago a group of volunteer scientists and citizens launched a campaign to save birds from the ravages of DDT. They went to court at the local level, then through several states and finally to Washington, DC, overcoming legal barriers and challenging unexpected new issues along the way. By the 1970s, DDT and five other pesticides had been banned. Viewed from the 21st century, these actions produced significant and permanent accomplishments: Preventing cancer—Techniques and procedures for evaluating and regulating carcinogens, which followed the DDT precedents, have been adopted by international treaty. Citizen standing in court—The DDT case broke down the standing barrier, allowing citizens to go to court to protect their environment. It fostered the development of environmental law as we know it today. Recovery of the birds—Populations of iconic bird species, including the Bald Eagle, that had been decimated by DDT, have now recovered their former abundance. Creation of the Environmental Defense Fund—EDF, spawned by the “DDT wars,” has grown into one of the nation’s largest and most influential environmental advocacy organizations. Top authorities in chemical carcinogenesis testified that DDT caused cancer in laboratory animals and that it was, therefore, a possible carcinogen in humans. The precedents set by DDT for identifying and regulating carcinogens then became the basis for banning another five dangerous chlorinated hydrocarbon pesticides: aldrin, dieldrin, heptachlor, chlordane, and mirex (see Chapter 12). EDF had established a very high standard for protection of public health against these carcinogens, as confirmed by two EPA administrators. In 2001 the Stockholm Convention on Persistent Organic Pollutants (the POPs Treaty) was signed by 151 nations to ban the “dirty dozen,” which included all of the “dirty half-dozen” singled out and banned thanks to EDF’s actions 23 years earlier. There was one exception to the total bans: DDT could be used for only malaria control. In 2009, nine additional POPs were added to the list. By 2013, 179 nations were party to the POPs Treaty, although the United States has not yet ratified it.

EDF Diversifies into New Environmental Arenas

Environmental law was essentially nonexistent in 1969, and it was a major goal of EDF to establish, enhance, develop, and use this new strategy for solving environmental problems, not just involving DDT but other issues as well. It wasn’t long after incorporation before EDF was getting much publicity because of its actions, leading to numerous requests for advice and assistance in connection with a variety of environmental problems, along with invitations to become involved in an assortment of issues. Whatever it was or wasn’t, EDF certainly was not all talk and no action. There was clearly plenty of action, which attracted plenty of attention. Conservationists were tired of losing by being reasonable, compromising, and timid. Earth Day was about to arrive, and it was time for action. We also were learning that being a “fund” caused a few problems of its own. Some thought it might be a source of funds for them. A few wondered if we were some sort of mutual fund, so Bob Smolker suggested we sell shares in our fund, which would “pay” negative dividends. His Mystique Committee had many original ideas. For the Long Island trustees and small staff, there was little risk in becoming involved in new cases. We had little money to spend or lose, we had an apparently good idea to pursue for environmental protection, and if somebody sent plane fare, we were on our way. So it was with Clancy Gordon of Missoula, Montana. In fact, he came to us only a few months after EDF’s incorporation. It was “Leap Day,” February 29, 1968, when about 100 women of Missoula gathered at the gates of the Hoerner-Waldorf pulp mill west of town to protest Missoula’s “stinky air.” Sometimes the air was so smoggy that planes could not land, and cars turned on their lights in mid-day. “GASP” read one of the picketer’s signs, “Gals Against Smoke and Pollution.” Other signs said “Phew!,” “Bad Sky Country,” “Our Air Stinks,” “How High is the Big Sky,” “Where’s the Airport?,” and “O, Say Can You See.”

Ruckelshaus Decides

All parties to the hearings knew that on June 14, 1972, at exactly 10 a.m., the door of the EPA administrator’s office would open and out would come someone to distribute copies of the decision on the future of DDT. Nobody knew what was in it, but all parties figured there would be something they would not like and would therefore want to appeal it to an appeals court. Appeals could be heard by any of several federal appellate courts around the country. More important, the first appeal made to any court would likely determine the location or venue where the appeal would be heard. The DDT proponents knew they had done poorly in the DC Court of Appeals, so they wanted to get their appeal out of DC; surely the cotton belt would be best. So they were waiting for that door to open with an open telephone line to the 5th Circuit Federal Court of Appeals in New Orleans, Louisiana. We knew what they were up to, so we were determined to file our appeal very quickly with the US Court of Appeals for DC, where we had done very well. That was not a simple procedure. Cell phones did not exist in those days. The EPA administrator’s door opened, the papers came out, and both appeals were rushed to the respective courts of appeal. Not a second was wasted to see what was in the decision. EDF attorney Bill Butler flashed the appeal on a pay phone, which had an open line to another pay phone in the DC Court of Appeals building near the clerk’s office, where EDF secretary Marie Bauman filed the EDF appeal. Each side claimed it had gotten to its preferred appeals court first. The DDT proponents said the case would move to New Orleans for the appeal. Much controversy and confusion ensued. Finally, it was decided that the clocks were not properly synchronized and that EDF had won the rapid communication derby: The case would stay in Washington, DC.

On to Wisconsin, the Dairy State

EDF was only a few months old with the DDT agitation still under way in Michigan when a phone call arrived from Lorrie Otto, an environmental leader in Milwaukee, Wisconsin (Fig. 4.1). Lorrie explained that DDT was to be used for attempted Dutch elm disease control in Milwaukee, and she wanted EDF to come to Wisconsin and stop it. She had been reading about our fireworks on Long Island and in Michigan and figured some of that might be good for Wisconsin. Other considerations were also favorable about Wisconsin. The use of DDT leads to contamination of meat, eggs, milk, and other dairy products, and the dairy industry is large and important in Wisconsin. Agriculture was therefore split in that state: One component wanted to use DDT on crops and trees, while the dairy industry wished to avoid DDT contamination of its products. Agriculture would not present a unified force on behalf of DDT, as it would in most states. The environmental movement was unusually strong in Wisconsin, and Lorrie Otto pledged to EDF the statewide support of the Citizens Natural Resources Association (CNRA). CNRA would raise money and provide all additional logistic support that might be necessary during whatever proceedings might develop. If EDF was going to make a difference on the national scene, this seemed like an invitation not to be refused. So here was an opportunity to stir up trouble again with an increase in complexity and confusion. On October 2, 1968, EDF filed a lawsuit in Federal Court in Milwaukee that was quite similar to the one filed nearly a year earlier in Michigan. It sought to block the Michigan Department of Agriculture (MDA) from applying dieldrin in Michigan against Japanese beetles (same case, same application as postponed last year) and to stop Milwaukee from spraying DDT on its elm trees. The allegations were the same: both DDT and dieldrin would kill nontarget birds and mammals, and both would threaten reproduction of the Coho salmon in Lake Michigan hatcheries.

Changes in Washington Affect the DDT Battle

Late in 1970, President Nixon proposed and Congress approved creation of the Environmental Protection Agency (EPA), in the process transferring the Pesticide Regulation Division from USDA to EPA. For pesticide regulation, this was no minor matter. The transfer was from USDA, an agency that primarily protected pesticide manufacturers and promoted their products, to EPA, an agency that was directly charged with protecting the environment. That was to make a large difference in how the DDT issue would be resolved. The first administrator of EPA was William D. Ruckelshaus, an attorney with a sterling record of public service in government. The other major item was the decision on DDT from the DC Court of Appeals. On January 7, 1971, the court ordered Ruckelshaus to immediately cancel all registrations of DDT and to determine whether DDT was “an imminent hazard to the public” and therefore should be suspended. The court was clearly annoyed by USDA’s failure to give adequate reasons for not suspending, so “it will be necessary to remand the case once more, for a fresh determination” of the matter of suspension. The court had taken away the discretion usually afforded a federal agency and ordered it to take action. This was an unprecedented decision. EPA had only been created on December 2, 1970; Ruckelshaus barely had time to find his telephone before this court order landed on his desk as his first order of business. Perhaps the most important part of this decision was that EDF survived USDA’s motions to throw our case out of court. The standing for citizens to sue the government, previously unavailable, had now been established by this precedent-setting decision. This was the firm beginning of what we now call “environmental law.” But you should not take the legal conclusion of a lowly scientist (me). Instead, here are the words of Joseph L. Sax, a professor of law at the University of Michigan Law School, from his September 30, 1973, letter in support of EDF’s application for the Tyler Ecology Award (we did not get it).

Time to Go After the Feds

By the fall of 1969 we knew we had to challenge pesticide regulation by the federal government if we were to ultimately prevail against DDT, but we did not know how to do it. We had the science well in hand and knew how to present it, with literally hundreds of scientists prepared to testify within their areas of expertise. We did not have the organizational structure to launch such an effort at the federal level, however, and we were certainly short of money. At about that time Joseph L. Sax, then the leading proponent of the development of environmental law at the University of Michigan Law School, suggested that we contact the newly founded Center for Law and Social Policy (CLASP), a public-interest law firm in Washington, DC. Joe was a member of the CLASP board. He insisted that DDT was in violation of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and that the U.S. Department of Agriculture (USDA) was not enforcing FIFRA. I therefore called and talked at length with James W. Moorman (Fig. 7.1), attorney for CLASP, describing the DDT problem and proposed action against USDA. “If we are going to do this, then you are going to come down here and help me put the case together,” said Jim firmly. That was not music to my ears: I had other things I needed to do, but shortly I was on my way to Washington. CLASP was in a rundown part of Washington, and my “housing” consisted of sleeping on an old mattress in their dusty attic. But we got to work and wrote a petition to USDA in about a week. The petition was a formal legal request that the FIFRA registrations for DDT be canceled. The petition also requested that USDA suspend the registrations while it was considering their cancellation. We had no illusions that USDA would grant our request, but it was Jim’s advice that we go to USDA for administrative relief before seeking cancellation and suspension from the courts.

Proceed with Caution, then Sue the Bastards in Michigan

At that first meeting on October 6, 1967, the new trustees of EDF had voted to “proceed with caution,” given the precarious position of this essentially nonorganization with no assets. It was an easy motion and it passed unanimously, but before long caution was thrown to the winds when Lew Batts described an imminent planned application of the insecticide dieldrin in western Michigan. Intended to eradicate an alleged infestation of Japanese beetles, dieldrin was to be applied to 3,000 acres in Berrien County near Lake Michigan by the Michigan and United States Departments of Agriculture. Lew wanted EDF to stop them. We already knew something about dieldrin, a chlorinated hydrocarbon relative of DDT and an environmentally destructive material, more acutely (immediately) toxic than DDT. We knew it would kill birds and mammals and could damage fish. Furthermore, Lew Batts was connected with a Michigan foundation that had more money, but less arrogance, than we did. EDF was designed to litigate, and Batts’s organization certainly was not. He guaranteed the assembled new trustees of EDF that if we would tackle the Michigan Department of Agriculture (MDA) in court to block the dieldrin application, he would support the effort with $10,000. The fat was in the fire! EDF’s trustees voted to cautiously sue the Michigan Department of Agriculture, and anybody else if necessary, to prevent the dieldrin treatment. Furthermore, several communities within the Lake Michigan watershed in western Michigan were using DDT in an attempt to control Dutch elm disease, a futile exercise with which we were very familiar (Wurster DH et al., 1965). With both of these destructive chemicals contaminating the fish, it would be difficult to separate the effects of each chemical from the other. So we decided to sue not only MDA in connection with its proposed dieldrin application, but we would add as defendants nine cities in western Michigan within the Lake Michigan watershed that were using DDT (Fremont, Muskegon, Greenville, Rockford, Lansing, East Lansing, East Grand Rapids, Holland, and Spring Lake).

Sue the Bastards on Long Island: The Power of an Idea

During the fall of 1965, a small group of people living on central Long Island, New York, with interests and concerns about a variety of environmental issues had begun to meet monthly in each other’s living rooms. Attendance of 25 to 30 included scientists from Brookhaven National Laboratory and the State University of New York at Stony Brook, in addition to various conservationists and a few high school students. The group called itself by the noneuphonious name of Brookhaven Town Natural Resources Committee, which quickly became BTNRC for obvious reasons. BTNRC was fascinating and enjoyable, but hardly an organization. There was no office, staff, money, bylaws, elected officers, or any of the other ingredients usually present in an organization. It was just a group of people who met occasionally to foster environmental protection policies by our local governments, and we all had other daytime jobs. We discussed various environmental issues—pollution from duck farms, dredging of wetlands, sewage pollution, DDT use on local marshes, dump sites, groundwater protection, wildlife and habitat preservation, and so forth. Meetings usually ended with one-person committees assigned to go do something during the weeks that followed, typically writing a letter to a congressman, a local politician, or a local newspaper. There was no treasury or treasurer, so occasionally we tossed a dollar or two into the middle of the room so that Myra Gelband, one of Art Cooley’s dedicated high school students, could send postcards to announce the next meeting. Attendance was excellent because meetings were fun with good company, good humor, and coffee and donuts at the end. The only feature of this nonorganization was that we had a letterhead printed to give the impression that there was, in fact, such an organization. We needed a bit of puffery to appear greater than we were, for otherwise we feared nobody would listen to us. Everyone seemed to like each other and got along well. An enjoyable social mix is surely a motivational factor that helps explain which groups continue and grow, and which ones stagnate.

Encores: Five More Bad Actors Were Dispatched

After DDT, EDF’s next pesticide targets were aldrin and dieldrin, both made by Shell Chemical Company. We had sought to block a dieldrin application in Michigan in late 1967, shortly after EDF was founded. That action was partly successful, delaying the application for many months and resulting in the application of less dieldrin. EDF was often accused of being against all pesticides, but that was never true. We were against DDT and several other persistent chlorinated hydrocarbons. Those pesticides were uniquely hazardous because they lasted for many years, traveled freely in the environment, and were ingested by animals and humans everywhere. They were very damaging to wildlife and—as we discovered along the way—they posed cancer hazards to humans. We were also against a purely chemical approach to pest control because integrated control techniques were more effective in controlling pests and contaminated the environment with less chemicals. We had a short list of pesticides that we identified as “bad actors”—all of which were persistent chlorinated hydrocarbons—and we eventually succeeded in getting all of them banned, although this took several years and an immense effort by our attorneys and scientists. On October 16, 1970, EDF filed a legal petition with HEW requesting the establishment of zero-tolerance levels for aldrin and dieldrin in human foods. The petition was written by attorney Edward Berlin and included a comprehensive review affidavit by me with numerous scientific references (Wurster, 1971). A few weeks later, pesticide regulation was transferred from HEW to the new EPA, and from then onward the action was pursued through EPA. I was not present during the hearing that followed. Instead Dr. Ian C. T. Nisbet, then the director of science for the Massachusetts Audubon Society, provided scientific support and attended the hearing. He wrote the next two sections (on aldrin and dieldrin and on heptachlor and chlordane), in which he describes what followed. On March 18, 1971, EPA issued notices of cancellation for all registrations of aldrin and dieldrin (A/D), but the marathon hearings did not begin until July 1973.

A New England Town Sprays Its Elm Trees with DDT

The robin was twitching, tremoring, convulsing uncontrollably, and peeping occasionally. The student handed the bird to me, and in a few minutes it was dead in my hands. It was April 23, 1963, and I was in my laboratory at Dartmouth College in Hanover, New Hampshire, when the student walked in with the bird. A week earlier the elm trees of Hanover had been sprayed with the insecticide DDT to control the spread of Dutch elm disease by elm bark beetles. In the following weeks 151 dead birds filled my freezer, many of them exhibiting before they died the tremors that we later learned were typical of DDT poisoning. Four of us were conducting a small-scale study of the effects, if any, of the DDT spray program in Hanover. We were shocked by what was happening to the local birds, but we would have expected this reaction to DDT if we had read the scientific literature on earlier DDT spray programs on elm trees. We had not. We soon realized that we had rediscovered what other ornithologists had already reported from DDT spray programs in the American Midwest. We also soon learned that DDT was ineffective in preventing the spread of Dutch elm disease and that another procedure, sanitation without insecticides, effectively protected the elms. This DDT spray procedure was all costs and no benefits. Hundreds of towns were killing thousands or millions of birds while not protecting their elms. The whole thing struck me as absurd and tragic. It became a life-changing event for me. I decided that DDT was a chemical that had to be stopped, although I hadn’t the slightest idea where such a conclusion was going to lead. I was 33 years old and had become what in those days was usually called a conservationist. Now such people have been renamed “environmentalists.” I had a dubious beginning as such a person. When I was about seven and living in a northern suburb of Philadelphia, I came across a couple of snakes.