ENVIRONMENTAL DEFENSE FUND,

Stony Brook, N.Y., October 10, 1970. Re the tax-exempt status of organizations which litigate on behalf of the public interest in environmental quality.

DEAR SENATOR MONDALE: In today's and yesterday's editions of the New York Times, it was reported that the Commissioner of Internal Revenue is "reviewing the tax-exempt status of litigating organizations, which are characterized as 'public interest law firms and other organizations which litigate or support litigation for what they determine to be the public good in some chosen area of national interest such as preservation of the environment, ***." According to the article, the Internal Revenue Service is undertaking this review because of its concern about "the lack of standards or control if tax exemption and deductibility of contributions were provided for every group desiring to litigate on behalf of the public interest." I have learned from our Washington counsel, William A. Butler, that in connection with the hearings presently being conducted by the Subcommittee on Unemployment, Manpower, and Poverty of the Labor and Public Welfare Committee, you have invited the Commissioner of Internal Revenue to testify on his proposed review of litigating organizations' tax-exempt status. I am therefore taking the liberty of writing to you to discuss our organization and how it operates.

We think that as a tax-exempt organization, we are furthering the public interest. Our criteria for taking action, including the initiation and prosecution of litigation, assures that the public interest will be served by our activities.

Our tax-exemption is based on our undertaking of scientific and educational activities. As explained in our bylaws (article 1, clause 2. appended hereto), our objectives include the "joining of the best scientific findings with the most appropriate social action*** [to] promote a quality environment." On occasion, this will include the taking of "whatever legal measures are necessary to provide scientists fair and impartial forums in which their scientific findings may be presented objectively to their fellow citizens and tested through crossexamination." In each instance where the Environmental Defense Fund undertakes litigation, we have first made an objective scientific inquiry of the environmental degradation which is being challenged to determine whether or not it involves serious and essentially irreparable damage to the environment. We also undertake, in keeping with the policy of the National Environmental Policy Act of 1969, to determine whether or not from an economic and social viewpoint, the challenged project is desirable and whether there are suitable alterna

tives involving less environmental degradation. For example, we have not undertaken a complete review of the siting and design of any of the fossil fuel or nuclear powerplants which have been challenged by other organizations. If we do initiate a challenge to any such plant, it will be on the basis that a careful evaluation of the evidence demonstrates that there are more favorable sites, or that the plant's design can be greatly improved so as to minimize pollution, or that an alternative source of power would present less environmental and human health hazards. A brief review of the litigation we have undertaken demonstrates that our activities are carefully controlled by a scientific evaluation of the facts so as to assure that the public interest is served. In Wisconsin, in a lengthy hearing before a hearing examiner of the Department of Natural Resources, we presented scientific evidence demonstrating the environmental harm and potential human health hazard caused by DDT. This was a hearing in which the pro-DDT forces, represented by the industry's task force on DDT had every opportunity to present evidence in opposition to our own. The result of that hearing was a proposed ruling by the hearing examiner, M. H. Van Susteren, that DDT "is harmful to humans and found to be a public health significance. *** DDT and its analogs are therefore environmental pollutants (within the meaning of the Wisconsin statutes by contaminating and rendering unclean and impure the air, land, and water of the State and making the same injurious to public health and deleterious to fish, bird and animal life." In the Wisconsin hearing, unlike the world of public relations, scientific truth was established only because each side was limited to presenting evidence by qualified experts and had the opportunity to cross-examine all witnesses in accordance with sound rules of evidence. The purpose of scientific and educational endeavors is to enlighten the public and the public decisionmakers with the truth so that the public welfare may be served. Scientific and educational organizations such as EDF must have access to the administrative agencies and courts of law where its scientific findings will receive a fair and objective hearing if it is to be able to accomplish its public interest objective of preventing environmental degradation and promoting a quality environment.

After the Wisconsin DDT hearings, EDF petitioned the Secretary of Health, Education, and Welfare to establish a zero or minimal tolerance for DDT in the American food supply and petitioned the Secretary of Agriculture to suspend and cancel the registration of DDT for all uses. EDF supported its petitions by thorough scientific research submitted in the form of references to scientific articles and data. Under the procedures followed by the two agencies involved, EDF was given no opportunity to challenge any evidence which may have been submitted in support of the continued use of DDT. Both petitions were summarily denied. On appeal to the Court of Appeals for the District of Columbia, both decisions were reversed because of the strong evidence that EDF had submitted in support of its petitions, with directions to act on the petitions. Here, again, it was only because EDF had access to a tribunal which respected the importance of scientific evidence in the decisionmaking process that scientific findings as to the hazards of DDT may have an impact on public policy and thereby promote the public interest.

Again, EDF acted to seek a ban on the use of DDT only after objective scientific research convinced it that the environmental hazards of DDT out weighed its benefits and that there were suitable substitutes for virtually all of its principal uses including in some instances biological integrated control methods, as well as alternative short-lived pesticides.

After a thorough investigation, EDF determined that a pulp plant located in Missoula, Mont., was the primary source of a serious air pollution problem in Missoula Valley and that the offending company could install pollution abatement equipment which would substantially solve the problem. It was only after EDF filed its lawsuit challenging the continued pollution of the air on the ground that the residents of Missoula Valley had a constitutional right to air free from offensive and toxic odors and substances that the company initiated and accelerated its program for installing the needed equipment. Presently, the company has committed itself to a $13.5 million air pollution abatement program. EDF's complaint was dismissed on the ground that they could not allege sufficient State action to prove a violation of the constitutional right it relied upon. The citizens of Missoula, who strongly favored the lawsuit, had organized a group to fight the pollution problem. While they had the determination and willingness to do whatever was necessary to rid their lovely valley of this serious problem, they did not have the financial and legal resources to challenge the company in court, as was truly necessary to precipitate corrective action by the company. The local city-county health department was also conscientiously attempting to take steps to compel the company to solve the problem, but as is so often the case, the department was sorely underfinanced and understaffed. It had neither the equipment nor the personnel to conduct the studies and experiments that would establish that the company's plant emissions were detrimental to the public health, the limit of its jurisdictional capacity to act. There was obviously need for a broader-based attack on the problem. EDF was able to introduce expert testimony that the pollution was causing serious and widespread damage to conifer trees on both private and national forest lands. It also was able to elicit testimony from company personnel demonstrating that corrective measures could be taken to alleviate the problem. The situation, in short, was one where EDF's action was predictably in compliance with the standards it has set for itself. There was scientific evidence showing a serious problem of environmental pollution, possible public health hazards, the technological means of abating the problem, and community support for corrective action combined with a lack of resources to take effective action without the help of EDF.

In many instances, EDF represents a public interest that is nationwide. For example, it has petitioned the Department of Health, Education, and Welfare to eliminate substantially the emission of lead particles from automobile exhaust systems by curtailing the use of lead in gasoline. Again, this petition was based upon thorough scientific research of the health effects of atmospheric lead pollution resulting from automotive emissions and the potential availability of substitute fuel and propellant systems. At the time EDF files its petition with HEW, no public agency was actively undertaking steps to eliminate this extremely serious health problem.

EDF has petitioned the Federal Aviation Agency to establish environmental standards now to be applicable to the prototype supersonic transport (SST) before construction is undertaken. It is EDF's opinion that a substantial commitment of resources to the construction of the prototypes will impede an objective evaluation of environmental standards at a later date. EDF is particularly concerned about the human health hazards of the sideline noise and the upper atmosphere pollution the presently proposed SST will cause.

With respect to the lead petition, we have been formally advised that HEW will respond by initiating corrective action in the near future so as to eliminate certain aspects of the atmosphere lead pollution problem. The FAA has issued a notice of advanced rulemaking with respect to our request that sideline noise levels of the SST not exceed those tolerances established for subsonic aircraft. We submit that regulatory agencies often hear primarily only the arguments and interpretation of data submitted by the industry they are to regulate, for often the public has no means of effectively gathering data, compiling it, and presenting counter arguments based thereon. EDF, by undertaking the necessary research of the scientific findings involved, and submitting them to the relevant regulatory agencies helps to satisfy the public interest in decisionmaking based upon objective scientific data. The general public cannot accomplish this objective without the support of organizations like EDF.

EDF is also challenging several governmental projects in court. It is suing the U.S. Army Corps of Engineers to enjoin the construction of the Cross-Florida Barge Canal until after the project is reevaluated with the aid of complete, objective, and modern ecological and economic studies of its consequences, as requested by the Secretary of Interior and, as we contend in our complaint, as required by the National Environmental Policy Act of 1969. We are also seeking to enjoin the construction of the Gillham Dam on the Cossatot River for essentially the same reasons. The Cross-Florida Barge Canal would destroy as a natural ecosystem the unique and lovely Oklawaha River and surrounding wild forests, a unique ecosystem for its variety and abundance of fish, wildlife, and beautiful hardwood trees. The esthetic quality of the Oklawaha River and the hardwood forests on its banks makes it a national treasure.

The Cossatot River is the last major free-flowing stream in southwestern Arkansas for all of the others have already been dammed. The Cossatot, a beautiful, rapid flowing stream affording fine fishing, is now of unique value.

Certainly the citizens of Florida and Arkansas, who have expended great amounts of volunteer time and effort in compiling the relevant scientific data, ought to have the opportunity to present their evidence in a court of law in an attempt to save these magnificent resources. They cannot do so without the help or organizations like EDF. It was for that reason that in each instance we agreed to help.

It is now widely recognized that most of the species of baleen whales are endangered because of overharvesting, primarily by the Japanese and Russian whalers. EDF's whale experts submitted population studies on these whales to the Endangered Species Office of the U.S. Department of Interior. After reviewing that data, the Department placed these whale species on the endangered species list. This means that no part of, or product derived from, such whales

can be imported legally into the United States. Hopefully, if other countries take similar action, the stocks of these species may be sufficiently increased not only to avoid extinction, but to make it possible for them to be harvested at a higher sustained basis in the future than is now possible even for a few years at the present rate of unconscionable slaughter. The whales have no representatives except for organizations like EDF. The whaling industry has many. Our population studies of whales were of great help to the Department of Interior in making its determinations. No other group or government agency came forward with such data, essential as it was to the decisionmaking process.

EDF also brought suit against the Olin Corp, because it was clearly discharging effluent from its DDT manufacturing plant in the vicinity of the Wheeler National Wildlife Refuge containing extraordinarily high concentrations of DDT which found their way from the plant into a ditch to the wildlife refuge where it was causing serious injury to fish and birds. Shortly after we filed suit, the Olin Corp. announced that it would terminate operations because it could not prevent the DDT contamination. We are now looking into another situation involving essentially the same problem.

EDF has found it necessary to sue the Secretary of Agriculture and the Agricultural Research Service to enjoin them from continuing their program to eradicate the imported fire ant from nine Southeastern States with Mirex, an extremely persistent chlorinated hydrocarbon because the program has been undertaken without adequate research as to the adverse effects the indiscriminate spraying of the Mirex baits will have on other species, including useful species of ants and crustaceans such as shrimp and crab which laboratory tests show to be extremely vulnerable to Mirex. Further, while the imported fire ant is an annoying nuisance, it is also beneficial in that it feeds on many harmful insects. EDF was asked to initiate this lawsuit by citizens and scientists, including members of EDF's Scientists Advisory Committee. The scientists were expert on both the imported fire ant, itself, and on the toxic effects of Mirex on beneficial insects and crustaceans. The scientists and other citizens involved, however, did not have the financial resources with which to undertake a lawsuit to enjoin this program. EDF undertook the initiation of a lawsuit only after a thorough investigation of the scientific findings made by the scientists directly involved. In short, it is our view that in this instance, the governmental decisionmaking process has gone awry. For corrective action, it is essential that scientifically based organizations, such as EDF, have access to the courts where scientific findings will be fairly heard, unfettered by the public relations ability of special interests.

EDF joined with two other organizations in seeking an injunction of the construction of the Trans-Alaska pipeline and the haul road therefor on the ground that the National Environmental Policy Act of 1969, as well as the Mineral Leasing Act, had not been complied with. Certainly, it cannot be argued seriously that either project having such tremendous impact on the fragile ecosystem of that State, should have been undertaken without full compliance with the only Federal act which is structured to safeguard the environment. No Federal agency sought to impede the project on the ground that there