January 13, 2012
If Thursday's hearing on the registration of methyl iodide offers any indication, Alameda County Superior Court Judge Frank Roesch probably wouldn't make much of a poker player. He delayed issuing a decision, instead giving the defendants, manufacturer Arysta LifeScience and the California Department of Pesticide Regulation, the opportunity to file additional briefs arguing their case, but parsed what he considers relevant questions of law from the politicized discussion that's surrounded the fumigant ever since DPR registered it in Dec. 2010.
In criticizing former DPR Director Mary-Ann Wardmerdam (who's since departed her post for a position at Clorox) for approving allowable levels 10 times greater than some scientists recommended, Greg Loarie, an attorney with plaintiff EarthJustice, said, "Arysta persuaded the director to simply change some of the numbers that went into the calculations."
Deputy Attorney General Cecilia Dennis, representing DPR, opened the defense with a response: "Petitioners' argument is that the department was capitulating to Arysta, and that's not the case."
Roesch interjected, "What difference does it make? It matters not in the law of CEQA whether or not an agency is capitulating to one side or the other."
"An agency may rely upon expert testimony from whatever quarter it chooses to rely," Roesch said. When Loarie later questioned Warmerdam's credentials, Roesch responded, "What difference does it make if she's a scientist or isn't a scientist? She's the director of the agency."
The judge turned his focus instead to the question of whether DPR had adequately considered the environmental impacts of alternatives to registering methyl iodide, namely non-registration, in accordance with the California Environmental Quality Act. "I have to tell you, if you've not done that, this is a granted petition. I just don't see how if you didn't do that you can say you are CEQA-compliant," he told Dennis.
"By complying with our regulations we are complying with CEQA," Dennis said.
Whether they did will be the judge's determination, and likely decide the case. Roesch asked Dennis to file an additional brief by Jan. 20 on whether DPR rules trump CEQA guidelines.
"We are eager to respond to his request," says DPR spokesperson Lea Brooks.
As a regulator, DPR doesn't conduct extensive environmental analysis of alternatives to registration. In her defense, Dennis described the decision to register a pesticide or not as a simple either/or scenario, unlike projects such as logging or building with more shades of gray as to how and whether they'll damage the environment.
"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."
Stanley Landfair of San Francisco-based McKenna Long & Aldridge, representing Arysta, argued the scientific basis for registration was sufficient. "It's not just Arysta, but U.S. EPA that believes this is a reasonable approach," he said. "U.S. EPA should not be dismissed, it should not be ignored, it should be respected as a decision in itself." Arysta had no comment because there was no decision Thursday, a representative said.
"I think it's a pretty important question about the need of this product," Roesch said. "A no-project evaluation would've done that. It seems to me that that's a really important evaluation that needs to be done."
Roesch's interest in analyzing the need for the fumigant comes about a week after the First Appellate District Court upheld Roesch's order barring the Nisei Farmers League, along with another trade organization and three individual farms, from joining the lawsuit as defendants. Their request to join the case, filed by ag lobbyist George Soares of Sacramento-based Kahn, Soares & Conway, alleges the economic impacts of the methyl bromide phaseout have already been extreme, one Fresno County grower, Will Scott, reporting 50 percent crop loss.
Citing a report commissioned by the California Department of Food and Agriculture completed at the request of DPR, they describe up to $896 million in lost crop revenues and $1.2 billion overall.
Roesch determined introducing the farmers to the case wouldn't introduce any significant new information, instead advising Landfair to consult with them and represent their concerns. "You'd like to have an extra brief on the subject because the more paper the better," Roesch told Landfair, according to court papers.
Landfair Thursday asked Roesch to consider the immediate needs of growers, and should he indeed rule in favor of the anti-pesticide groups, to consider granting temporary permission to continue applying methyl iodide so long as litigation continues.
And it likely will continue; during a 90-minute wait for a court recorder (not provided by the court due to budget cuts), Roesch said 98 percent of similar CEQA cases go to appeal.
Marsh says it's "99 percent" likely they'd appeal, and Landfair says, "There's always the Court of Appeal. This is a very important case."