(Beyond Pesticides, January 20, 2012) A California Superior Court Judge has questioned whether the California Department of Pesticide Regulation (CDPR) complied with its legal obligation to consider alternative options before approving use of the toxic fumigant methyl iodide in 2010. Judge Frank Roesch raised the concern in comments from the bench during a January 13 hearing involving a lawsuit filed by farm worker and environmental organizations against CDPR and the Arysta LifeScience Corporation, which manufactures the methyl iodide products used in the state.
The California Environmental Quality Act (CEQA) requires that state agencies consider alternative options to a regulatory action that meets the definition of a “project.” Projects include an action undertaken by a public agency which may cause either a direct physical change in the environment or a reasonably foreseeable indirect change in the environment. A project may not be approved as submitted if feasible alternatives or mitigation measures are able to substantially lessen the significant environmental effects of the project. While CDPR’s pesticide regulations have previously been recognized as “projects” as defined in the CEQA, it is unusual for judicial review to raise concerns about the validity of the alternatives assessments.
“Did you consider not approving methyl iodide? I don’t see it,” Judge Roesch asked. “Absent that, I don’t see how you can prevail in the lawsuit.” Representing CDPR, California Deputy Attorney General Cecilia Dennis could not produce such documentation. Ms. Dennis responded that the assessment was implicit in the overall documentation and that CDPR leaves it up to local agricultural districts to weigh the pros and cons of using the chemical before they grant final authorization for its use. Judge Roesch gave the CDPR’s attorneys a week to draft a brief to persuade him that the agency is not required to comply with the CEQA requirement. Earthjustice and California Rural Legal Assistance, lead attorneys for the plaintiffs, will then have one week to respond before Judge Roesch issues a final ruling on the legality of the CPDR’s decision.
The current lawsuit also raises significant epidemiological issues related to methyl iodide in addition to the CEQA procedural requirements. In approving the fumigant, CDPR shunned the findings of top scientists ””including the state’s own Scientific Review Committee”” who have consistently said that the chemical is too dangerous to be used in agriculture. Mr. Greg Loarie, attorney with Earthjustice, said, “The public has been shocked, wondering how methyl iodide could be approved under California law. The truth is that CDPR played too fast and loose with their decision. They exceeded their legal authority and have put the public and farmworkers at great risk of harm.”
Methyl iodide poses the most direct risks to farmworkers and those in the surrounding communities because of the volume that would be applied to fields and its tendency to drift off site through the air. Methyl iodide causes late term miscarriages, contaminates groundwater, and is so reliably carcinogenic that it’s used to create cancer cells in laboratories. It is on California’s official list of known carcinogenic chemicals and has been linked to serious risks in reproductive and neurological health. It is approved to be applied to California’s strawberry fields at rates up to 100 pounds per acre on much of the state’s 38,000 acres in strawberry production, totaling millions of pounds of use. Though methyl iodide will likely be used primarily on strawberries, it is also registered for use on tomatoes, peppers, nurseries, and on soils prior to replanting orchards and vineyards.
In 2007, EPA fast-tracked the registration of methyl iodide for use as a soil fumigant, despite serious concerns raised by a group of over 50 eminent scientists, including six Nobel Laureates in Chemistry. These scientists sent a letter of concern to EPA explaining, “Because of methyl iodide’s high volatility and water solubility, broad use of this chemical in agriculture will guarantee substantial releases to air, surface waters and groundwater, and will result in exposures for many people. In addition to the potential for increased cancer incidence, EPA’s own evaluation of the chemical also indicates that methyl iodide causes thyroid toxicity, permanent neurological damage, and fetal losses in experimental animals.” The letter concludes, “It is astonishing that the Office of Pesticide Programs (of EPA) is working to legalize broadcast releases of one of the more toxic chemicals used in manufacturing into the environment.”
Organic certification standards require crop farmers to establish a preventive pest management strategy based on crop rotation, variety selection, biological controls, and sanitation and fertility practices. Synthetic materials that are allowed in organic crop production must satisfy a rigorous review process to insure their necessity, efficacy and safety to humans and the environment throughout their production and utilization. This review process must be updated every five years for the material to remain in use. A journal article from 2010 shows that organic farms produce more flavorful and nutritious strawberries while leaving the soil healthier and more biologically diverse than conventional strawberry farms. For more information on organic versus conventional agricultural practices, see Beyond Pesticides’ guide, Organic Food: Eating with a Conscience as well as our organic program page. In addition to the personal health risks posed by pesticide residues, Beyond Pesticides urges consumers to consider the impacts on the environment, farmworker and farm families’ health when making food choices.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.