Litigation could alter future of California pesticide; county stakeholders seek consensus.
Thursday, February 2, 2012
At points the controversy over methyl iodide has moved into the macabre as activists talk fetal rabbit deaths and stage mock fumigations on the state Capitol steps. Now it has taken a turn for the procedural.
Alameda County Superior Court Judge Frank Roesch parsed science from government code at a Jan. 12 hearing in Oakland. He asked attorneys for manufacturer Arysta LifeScience and the Attorney General, representing the state Department of Pesticide Regulation and former director Mary-Ann Warmerdam, whether DPR’s rules trump the California Environmental Quality Act. (Warmerdam has since taken a job at Clorox.)
Arysta’s banking on it. “The short answer is yes,” Arysta attorney Stanley Landfair wrote in a brief filed Jan. 20.
DPR’s brief says dealing with CEQA documents for thousands of pesticides the agency reviews each year would “be an unreasonable and expensive burden on California agriculture and health protection agencies.” In 1979, the state Legislature decided DPR should supersede CEQA precisely for that reason, Landfair wrote.
California Rural Legal Assistance and EarthJustice sued Arysta and DPR in December 2010, alleging they inadequately considered the hazards of methyl iodide.
A ruling in the plaintiffs’ favor could upend the decades-old method DPR uses to evaluate pesticides, making it harder to get them approved. “What’s really at stake,” CRLA directing attorney Michael Marsh says, “is the regulatory program that’s failed to consider alternatives in a thorough and serious way.”
The new round of briefs comes after Deputy A.G. Cecilia Dennis couldn’t produce an environmental impact report on the effects of methyl iodide registration. “I don’t see how you can prevail,” Roesch said. “I just don’t see how… you can say you are CEQA-compliant.”
The pending litigation hasn’t stopped a small stakeholder group from meeting in Monterey County at the direction of Supervisor Simon Salinas. After four meetings in three weeks, the group plans to present the Board of Supervisors with a letter taking a position on methyl iodide by Feb. 14.
The meetings, facilitated by County Agricultural Commissioner Eric Lauritzen but not open to the public, are a last-ditch effort to reach consensus on the methyl matter after anti-pesticide activists brought the issue to the board in November.
But of the 10 stakeholders listed on a roster obtained by the Weekly, only one, Gary Karnes, represents the public at large; he has since dropped out to run Assemblyman Bill Monning’s state Senate campaign. Remaining members include labor reps from United Farm Workers and the Monterey Bay Central Labor Council, Traci Townsend of Planned Parenthood, Grower-Shipper Association President Jim Bogart, attorney Jeff Gilles, Monterey County Farm Bureau Executive Director Norm Groot and Rick Tomlinson of the California Strawberry Commission.
Whatever conclusion the group reaches, Lauritzen says the Roesch’s ruling will impact his office’s operations. He attended the hearing, he says, “to get a direct sense from the courtroom how the judge reacted.”
Attorneys had set out to battle. Greg Loarie of EarthJustice claimed Arysta persuaded DPR to cherry-pick scientific figures, which Dennis denied.
Marsh says it’s “99 percent” likely the plaintiffs will appeal if they lose, as does the defending attorney. “There’s always the Court of Appeal,” Landfair says. “This is a very important case.”