By Robin Urevich, California Health Report
A ruling is expected in the coming weeks in a first-of-its kind-legal battle over methyl iodide, one of the most controversial pesticides in use in California.
Attorneys for Earthjustice, an environmental law firm, filed court papers describing the state Department of Pesticide Regulation’s approval of methyl iodide in December 2010 as “irresponsible and illegal”.
“Breathing even small amounts causes slurred speech, vomiting, fetal miscarriage, and permanent damage to the lungs, liver, kidneys, and central nervous system. Direct skin exposure causes burns. And methyl iodide causes cancer…” they wrote.
The attorneys representing Pesticide Action Network North America, the United Farm Workers union, and similar groups are asking Alameda County Superior Court Judge Frank Roesch to roll back the state’s decision and make methyl iodide illegal in California.
They say the state violated key environmental laws in approving the chemical.
If the courts agree, pesticide regulation in the state could become tougher and more transparent.
“Legal challenges like this are extremely rare,” said Californians for Pesticide Reform Co-Director Tracey Brieger, adding that with more than 1,000 pesticides in use in the state, it’s difficult to target them individually.
“Methyl iodide is an exception because it’s so dangerous and the science is so strong that it was very important to us to have it never be registered,” Brieger said.
But some California growers feel equally strongly that they need methyl iodide to replace methyl bromide, a soil fumigant that will be banned under international treaty by 2015, because it depletes the earth’s ozone layer.
Soil fumigants like methyl bromide and methyl iodide are among the most toxic of pesticides, but many farmers consider them essential because they clear the soil of pests before strawberries, tomatoes, and many other crops are planted.
State officials have defended the methyl iodide decision, saying it came only after an exhaustive eight-year long approval process.
Former DPR Director Mary Ann Warmerdam called methyl iodide “the most evaluated pesticide in the department’s history” and insisted it could be used safely with strict mitigation measures.
But Earthjustice attorney Greg Loarie said Warmerdam, now an executive in regulatory affairs at the Clorox Company, mishandled the evaluation: She allowed herself to be swayed by methyl iodide maker Arysta Lifescience when she approved the chemical for use at 100 times the levels her own staff recommended, and flouted sound scientific practice in doing so, Loarie argued. And, according to Loarie, Warmerdam failed to explain to the public how and why she overruled her staff’s recommendations.
“As my sixth grade teacher might say, the director didn’t show her work,” Loarie said in a Jan. 12 court hearing.
Still, Loarie contended his strongest argument against DPR was that the agency violated the California Environmental Quality Act, which requires state and local governments to identify and reduce harm to the environment, and discuss alternatives before moving forward on a project.
DPR’s public report is just seven pages long with only a single paragraph on alternatives, Loarie noted. In it, the agency says that a full alternatives analysis is beyond the scope of the pesticide registration process.
“If the violation seems extremely clear cut, it is,” Loarie told the judge.
Roesch, the judge in the case, seized on the CEQA argument and wouldn’t let go, boxing Deputy Attorney General Cecilia Dennis into a corner in this exchange:
Roesch: Tell me where in the record I’d find environmental impacts if the decision was not to register.
Dennis: I can’t point to any place specific. The entire discussion goes to whether the pesticide should or shouldn’t be registered.
Roesch: CEQA says the specific alternative of no project should be evaluated along with its impact. I need to know where that is. I have to tell you that if you have not done that, this is a granted petition (for the pesticide’s opponents). I don’t know how you can say you are CEQA compliant if you didn’t do that.
Dennis: You have to read between the lines.
Roesch ended his questioning with a second warning that the state would lose if it couldn’t show that it had considered alternatives to methyl iodide registration.
But attorney Stanley Landfair, who represents methyl iodide maker Arysta Lifescience North America, argued that DPR, as a state certified regulatory agency, correctly followed its own rules in registering the chemical. He contended those rules trump CEQA.
As the hearing ended, Roesch agreed to consider additional briefs on the CEQA issue before ruling.
Both Landfair and an Arysta spokesman declined to comment on the case.
Roesch can uphold methyl iodide’s registration, cancel or suspend it, or craft another remedy somewhere in between.
Farmers and agriculture trade groups are keeping a close watch on the case, even though methyl iodide use in the state has been sparse. Only six California growers have used it to date.
Some say they fear protests or lawsuits, and await the judge’s ruling before trying it.
The Fresno-based Nisei Farmer’s League, and several nursery growers unsuccessfully petitioned last spring to present their own pro-methyl iodide arguments as interveners in the case. Roesch denied their request, and an appeals court backed him up.
“If any fumigant has to go through this type of hell, we won’t have any fumigants,” said Manuel Cunha, president of the Nisei Farmer’s League.
“You talk about a state that will have dead trees and insects…If you don’t have these tools, how do we combat these horrible diseases?”
Still these arguments, and the debate over health and safety will remain in the background as the judge considers whether DPR is exempt from CEQA.
Experts say they doubt that it is.
“CEQA is over and above other laws,” said Richard Drury, an attorney who often represents environmentalists in court. “The same argument [DPR makes] has been spun out a bunch of different times…Every time, the judge says you have to do CEQA, too,” Drury said.
Just because state agencies, like DPR, have their own regulatory programs doesn’t mean they don’t have to fulfill CEQA requirements, said Maureen Gorsen, a Sacramento attorney who headed the Department of Toxic Substances Control under Gov. Arnold Schwarzenegger.
Regulatory agencies must hash out the environmental pros and cons and alternatives to their proposed projects in so-called functional equivalent documents, Gorsen said.
“The air board functional equivalent documents? They’re huge. The energy commission’s? They’re huge,” Gorsen said
Roesch, the first judge in California to rule on whether new pesticides must go through a CEQA-like evaluation, is experienced in the field, Drury said.
“He’s done a ton of CEQA cases. He’s one of the smarter judges in the state.”
At the Jan 12 hearing, Roesch remarked that he probably won’t have the last word on the methyl iodide matter, as 98 percent of such cases are appealed.
Loarie said he and his clients would consult on any appeals decision. Cal EPA spokeswoman Deborah Hoffman said in an email that her agency and the attorney general’s office would be involved with DPR in making such a call.
Despite lobbying by environmentalists, Gov. Jerry Brown has kept mum on methyl iodide since last March when he told a reporter for the Ventura County Star that he’d take a fresh look at the question. He has not yet appointed a new DPR director to replace Warmerdam, a move that observers say is a first step toward any administration action on methyl iodide.
Still, state officials appear to have noted public concern about methyl iodide. This year’s prosposed DPR budget includes a new $700,000 fund to study alternatives to chemical fumigants. The money does not come from the state general fund.
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