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Daily News Blog

22
Oct

Appeal Court Strikes Down Hazardous Statewide California Pesticide Spray Program

(Beyond Pesticides, October 22, 2021) The California Court of Appeal (Third District, Sacramento) has ruled that a statewide pesticide spraying program violates state law. The court found that the program, launched in 2014 and administered by the California Department of Food and Agriculture (CDFA), contravenes California’s landmark 1970 Environmental Quality Act (CEQA). It does so, the court found, by failing to: assess and reduce damages of pesticide applications to bees, other pollinators, and water bodies; conduct site-specific environmental reviews; and notify the public before spraying is conducted. This decision is a victory, and a step toward a less-toxic California, say plaintiffs and many health and environmental advocates, including Beyond Pesticides.

The history of CDFA’s actions in the state is riddled with invocations of emergency provisions of California’s Food and Agriculture Code. These emergency declarations have allowed CDFA to conduct pesticide spraying for invasive species nearly anywhere — in back yards, on school and recreational grounds, on organic farms, on public lands, and sometimes, across entire neighborhoods — without any analysis of the health and environmental impacts of those applications, or any notice to the public or opportunity to comment on the program. From 2014 to 2018, CDFA conducted more than 1,000 such pesticide applications.

Petitioners before the Court of Appeal comprise two groups: those from the original case that was adjudicated in 2018 by Sacramento County Superior Court, and the additional parties in the current case — an appeal of that 2018 decision by CDFA. Plaintiffs in the original case included the City of Berkeley, Environmental Working Group (EWG), Center for Biological Diversity (CBD), Beyond Pesticides, California Environmental Health Initiative, MOMS Advocating Sustainability, Center for Food Safety, Pesticide Action Network North America, Center for Environmental Health, Environmental Action Committee of West Marin, Californians for Pesticide Reform, and Safe Alternatives for our Forest Environment. Additional petitioners in the appeal case are North Coast Rivers Alliance, Pesticide Free Zone, Inc., Health and Habitat, Inc., Californians for Alternatives to Toxics and Gayle McLaughlin (former mayor of Richmond, California).

The petitioners sought writs of mandate challenging the CDFA pesticide program’s environmental impact report (EIR). A writ of mandate is a procedure in California that allows superior courts, courts of appeal, and the state Supreme Court to command lower courts and state agencies to take, or not take, specific actions. When a writ is issued, the responsibility for enacting the content of the writ falls to the lower body. In this case, this means that, although the appeal court agreed with a host of the petitioners’ claims, it did not explicitly set aside the program’s EIR or tell CDFA to stop carrying out the program. Rather, it will send its ruling back to the lower court, which by law should issue orders consistent with the appeal court’s decision. Unfortunately, this means that CDFA can continue this pesticide spraying program until the lower, trial court issues such orders.

The CDFA pesticide program at issue uses — on public and private property, on agricultural lands, and even on wild lands — pesticides known to be carcinogenic and teratogenic (causing birth defects), and toxic to, especially, bees, birds, fish, and butterflies. Among those pesticide compounds are, according to CBD:

The appeal court’s October 15 ruling should result in writs saying that CDFA’s certification of the program’s environmental impact report (EIR) and its approval of the program must be set aside, and enjoining the agency from any further activities within the program “until the Department certifies an EIR correcting the CEQA violations identified in the trial court’s ruling.” Among other stipulations, CEQA requires EIRs for all major projects by state agencies that might have environmental impacts; unlike the federal National Environmental Quality Act, the California statute also requires the state to prevent or mitigate negative impacts it discovers. The appeal court’s written ruling identifies multiple instances of CDFA failing to analyze adequately the health and environmental dangers of more than 75 pesticides the agency greenlighted for its program use across the state.

The court also found that CDFA understated existing levels of pesticide use, and failed to assess, and reduce, the damage done by pesticide spraying to pollinators and to water bodies. The ruling states: “We agree with EWG that the program EIR fails to mitigate potential significant adverse impacts on bees. . . . The program EIR discloses that use of pesticides for Program activities could harm bees. . . . The program EIR’s Ecological Risk Assessment and Appendix K likewise state that pesticides can poison bees. . . . [and] Appendix K further notes sublethal impacts to bees from pesticides, including reducing the foraging success of bees. Because the program EIR discloses that Program activities could have substantial adverse impacts on bees, it must discuss mitigation measures for those impacts and the program EIR does not do so.”

In addition, the ruling notes that, although CDFA’s EIR for the pesticide program indicates that the agency “would implement avoidance and minimization measures discussed [in the EIR] . . . the program EIR does not explain how the management practices . . . would minimize the potential adverse impacts on bees. . . . The Department’s statement in the program EIR that implementation of enumerated measures would reduce or avoid potential impacts on bees, without facts or analysis, is inadequate.”

The decision asserts, “The program EIR is deficient for another reason. . . . any additional contribution by the . . . Program to an impairment [i.e., existing chemical contamination of a water body] would be a considerable contribution to a cumulatively significant impact. . . . The analysis in the program EIR does not lead to the conclusion of no cumulative impact on impaired waterbodies.”

The court also states that, although “the program EIR recognizes that the cumulative risk to ecological receptors and human health from Program activities ‘would depend on the pesticide chemicals used, other chemical additives used, how a pesticide is applied, where pesticide use occurs, the quantity and concentration of the pesticides applied, exposure pathways, and the biological characteristics of the receptor,’” CDFA’s defense that “the program EIR adequately evaluated the Program’s cumulative impacts” relies on program components that contain no “information about the factors the program EIR acknowledges are relevant.”0

According to CBD, the court “highlighted that the proposal was made largely without public notice and without evaluating local impacts or allowing opportunity for affected communities to opt out.” On the other side of the coin, the court said, “The EWG petitioners fail[ed] to show that the program EIR’s analysis of human health impacts is misleading or inadequate.”

The Superior Court’s 2018 findings (in the original litigation) echo much of what the appeal court decision now sets out. As reported by Beyond Pesticides in 2018, “In its implementation outline for the program, the PEIR gave CDFA carte blanche to use more pesticides in a state already over-burdened with pesticides in the environment. The court labeled as ‘woefully deficient’ CDFA’s analysis of the cumulative impacts of adding pesticides to the state’s already hefty environmental burden of over 150 million pounds released annually. It cited ‘unsupported assumptions and speculations’ contained in the PEIR as a basis for concluding that pesticides would not contaminate waterbodies. Potentially significant pollinator impacts were also ‘improperly ignored.’ The court further concluded that in the PEIR document CDFA had granted itself authority ‘to implement a broad range of practices without evaluating the site-specific conditions’ as a basis for determining their impacts.”

As was the case in 2018, this current ruling does not prevent CDFA from conducting non-pesticide related activities, including pest identification, site inspections, and the imposition of quarantines, nor does it prevent the agency from producing specific EIRs for individual projects. And the decision has no impact on the actions of farmers, other institutions, companies, or residents from spraying pesticides on their land. But, as CBD’s Environmental Health Legal Director Jonathan Evans noted in 2018, the state “can’t use pesticides until [it] addresses how those pesticides are going to impact communities affected and the sensitive wildlife species and watersheds that [would] be sprayed.”

Advocates are pleased with this Court of Appeal decision. CBD reports the comment of Nan Wishner of the California Environmental Health Initiative: “This ruling sends an important message to the Department of Food and Agriculture to make protecting the health of our communities and food supply the top priority by joining the transition to sustainable pest-management practices.” CBD’s Jonathan Evans also commented, “The court affirmed Californians have the right to know when dangerous pesticides are sprayed in their communities and what the risks are to people and to pollinators crucial to our food supply.”

The Environmental Working Group’s California Director of Government Affairs, Bill Allayaud, weighed in, saying, “The court was right to rule against the Department of Food and Agriculture’s outrageous effort to hide from the public where toxic pesticides are being sprayed and to downplay the risks these chemicals pose to pollinators, the environment, and the health of those who live near farm fields. It is our hope the department accepts the court’s ruling and joins the state’s movement toward sustainable pest management, represented by the governor’s recently released Sustainable Agriculture budget initiative and the state Department of Pesticide Registration’s Sustainable Pest Management Work Group.”

CDFA could appeal this decision of the Third District Court of Appeal to the California Supreme Court. Thus far, that is not expected by the petitioners, who hope for an order from the trial court in the next few months that will set aside the current EIR and prevent CDFA from continuing its activities covered by that EIR — which comprise most of the agency’s chemical pest management.

Beyond Pesticides welcomes this decision, which is an important roadmap for advocates and other states to follow. According to Jay Feldman, executive director of Beyond Pesticides, “All state agencies that deal with pesticides, health, environment, and land management should be engaged in evaluating the real-world impacts of pesticide use against invasive species, and the sustainable alternatives prior to any broad-scale state application programs.” “Still, such a piecemeal and “fractured” approach to the use of pesticides underscores the need for precautionary federal action on these toxic compounds,” he continued.

Individuals can adopt a variety of least-toxic practices for dealing with pests of all sorts in their home, garden, school, and community environments. See Beyond Pesticides resource pages: Least Toxic Control of Pests in the Home and Garden, Meeting the Invasive Species Challenge, ManageSafeTM, and Ecological Management of Problem Vegetation, among others. The public is encouraged by Beyond Pesticides to organize in municipalities, counties, and/or states to pressure governments to do better on getting poisons out of the materials streams, human bodies, and the environment. Beyond Pesticides offers Tools for Change, a resource for activism, and an older-but-still-useful document, Now Hear This: The Nine Laws of Successful Advocacy Communications. In addition, always feel free to reach out to Beyond Pesticides for guidance on local advocacy via email at [email protected], or at 1.202.543.5450.

Sources: https://biologicaldiversity.org/w/news/press-releases/court-of-appeal-rejects-californias-blanket-approval-of-pesticide-spraying-2021-10-18/ and https://www.courts.ca.gov/opinions/nonpub/C086957.pdf

All unattributed positions and opinions in this piece are those of Beyond Pesticides.

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2 Responses to “Appeal Court Strikes Down Hazardous Statewide California Pesticide Spray Program”

  1. 1
    Mary McAllister Says:

    Many thanks to Beyond Pesticides for joining this important lawsuit. Congratulations on an important victory in the effort to reduce the use of pesticides in California.

  2. 2
    Leo G Younger Says:

    Congratulations on a significant increase of protection for pollinators and people. I’ve long suspected that the government spraying of anything identified as a pest or invasive species is a boondoggle for professional sprayers. It’s a similar situation to the war mongers’ incessant lobbying of federal politicians for more munitions and use. Captured agencies are of course involved at federal and state levels wherever war against nature is ongoing.

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