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From January 11, 2006                                                                                                        

Court Orders Environmental Assessment of Pesticides
(Beyond Pesticides, January 11, 2006)
In a landmark decision, a California appeals court recently rejected a state plan to use up to 30 pesticides including the highly toxic pesticide, carbaryl (Sevin™), in order to contain the glassy-winged sharpshooter, an insect scourge of wine-grape vines, according to a local environmental group and lead plaintiff in the case, Californians for Alternatives to Toxics (CATs).

The three-judge 1st District Court of Appeals held that the California Environmental Quality Act (CEQA) requires an environmental analysis that produces "specific data as needed to meaningfully assess whether the proposed activities would result in significant impacts" and ruled that the Department of Food and Agriculture (DFA) must complete a new Environmental Impact Report (EIR). It also told a lower court to decide whether state spraying to control the insect should be suspended until the new analysis is prepared.

"Californians have the right to know what dangers come with pesticide spraying that's forced on them to protect a major industry,” said Patty Clary of the Eureka-based CATs. “Our state agencies must alter their programs to prevent such harm. The court has affirmed that no industry or government agency is above these fundamental laws."

At issue was whether the DFA could rely merely on the label restrictions on the dozens of pesticides--many of them serious nerve toxins—to ensure unreasonable harm would not occur. For decades, agencies have tried to avoid the required EIR analysis on pesticide impacts by claiming that the CEQA was satisfied because the pesticides are registered by the U.S. EPA and California's Department of Pesticide Regulation. This landmark decision overturned that thinking and ruled that federal or state registration of a pesticide does not take the place of an actual environmental impact assessment of the pesticides proposed to be used.

"Until all the necessary information is in, the state can't rely on whatever chemical that's been registered without plans that fit the specific uses," posited Jane Nielson of Public Employees for Environmental Responsibility, a plaintiff in the case.

The glassy-winged sharpshooter first became an agricultural problem in 1999. By 2000, the California state legislature enacted created the Pierce's disease control program within California's Department of Food and Agriculture. This triggered an emergency pest control program.

In 2002, DFA began an environmental evaluation required by CEQA in an effort to change the ongoing emergency program into a long-term program. The DFA’s draft EIR identified several potential impacts, including loss of bees and other beneficial insects; temporary withdrawal of organic certification for growers; surface water pesticide contamination; potential exposure to pesticide residues on the part of agricultural and nursery workers as well as fragile populations (the acutely ill, very young or old, or pregnant women) and other persons in nonagricultural areas who come into contact with residues through skin contact, inhalation, etc.

The DFA concluded that safeguards employed during the registration of the pesticides reduced the risk of these adverse effects and therefore, proposed no additional mitigation measures. Public critics disputed the agency’s assessment and brought to light a myriad of issues not addressed, including the failure of the agency to consider integrated pest management (IPM) as a potential alternative to pesticides.

Upon issuing the final EIR in May 2003, DFA concluded: “Commenters did not identify any new significant environmental impacts not addressed in the EIR.” Appellants promptly filed a lawsuit in June 2003.

According to the court documents, "In preparing the final EIR, the lead agency must respond to comments received with a good faith, reasoned analysis, explaining in detail its reasons for rejecting suggestions and proceeding with the project despite environmental effects. Conclusory statements that are not supported
by factual information will not do.

Judicial review under CEQA generally is limited to ascertaining whether the lead agency abused its discretion by not proceeding as required by law, or by making a determination that is not supported by substantial evidence.” In this vain, the court found that the EIR was substantially flawed.

"Our biggest concern has always been for pregnant women, children and the elderly-those people who have zero tolerance for toxic exposure," said Lowell Downey of People Opposed to Insecticide Spraying On Neighborhoods (POISON), another plaintiff in the case. "This ruling should send a clear message that the state cannot buckle under to the pressure of economic interests without considering the consequences to the people."

The decision can be read at http://www.courtinfo.ca.gov/opinions/nonpub/A107088.PDF. The court's opinion is in the process of being certified for publication.