March 22, 2012
If Arysta LifesScience hadn’t withdrawn methyl iodide from the market Tuesday, it would’ve lost in court.
“My decision is, the petition must be granted,” Alameda County Superior Court Judge Frank Roesch said yesterday, according to court transcripts.
“There is no evidence of any kind that the actual methodology used…has scientific validity. Nobody says that it does,” Roesch added, dismissing the California Department of Pesticide Regulation registration process for the controversial fumigant as having been “cobbled together.”
Arysta requested a hearing to consider dropping the case, which Roesch agreed to schedule for May 1.
“There is no registration for methyl iodide in California,” said Arysta’s attorney Stanley Landfair of San Francisco-based McKenna Long & Aldridge, according to the court transcript. “And we believe that renders the case moot.”
Deputy Attorney General Cecilia Dennis, representing DPR and former director Mary-Ann Warmerdam, will join in the motion for dismissal. “DPR believes the case is now moot since there is no further relief the court could grant,” DPR spokesperson Lea Brooks writes by email.
After Tokyo-based Arysta announced late Tuesday the voluntary withdrawal of methyl iodide from the U.S., the company filed its registration cancellation Wednesday with California DPR.
“The decision was made as part of an internal review of the fumigant and based on its economic viability in the U.S. marketplace,” according to a statement released by Arysta representatives.
It might also be their ticket out of a losing court battle—or it might not.
Even though Roesch granted the hearing, he indicated he might stick with his original stance on the case: “It is not a marketing question, whether you are going to market or not market, manufacture or not manufacture,” he said. “It is the permission created by the approval of the Department [in December 2010] that is at issue.”
If Roesch’s anticipated ruling were to stand up to appeals (both parties indicated their intent to appeal), the process of approving pesticides in California could become much more costly. In 1979, the state Legislature decided DPR should supersede the California Environmental Quality Act to keep from getting every chemical bogged down in an expensive, lengthy analysis, according to court documents filed by Landfair. Landfair was not immediately available for comment Thursday.
California Rural Legal Assistance Directing Attorney Michael Marsh, one of the plaintiffs’ attorneys in the case, says they won’t stand down just because methyl iodide’s been pulled, because a ruling in their favor stands to alter the future of the regulatory program for pesticides in the state.
“If this case is allowed to die, we’re just going to go back with a different pesticide in the future, making the same arguments,” Marsh says. “We think there’s still value in the case going forward.”
Regardless of what happens in court, the pressure's on for a search for fumigation alternatives. Methyl iodide was introduced as an alternative to methyl bromide, which is being phased out under international treaty due to its ozone-depleting properties.
"The issue ultimately isn't a financial one," says John Froines, a professor of chemical toxicology at the UCLA School of Public Health. "It's a health issue." Froines led an independent Scientific Review Committee, commissioned by DPR in 2010 to advise on methyl iodide. He was complimentary to DPR until methyl iodide was registered for use at 100 times the exposure rate Froines recommended.
Arysta for now has plans to pursue international markets for methyl iodide, and hasn't indicated whether there's a possibility for reintroducing it to the U.S. in the future.
Froines hopes this is the end of the chemical's domestic life: "There’s no question the evidence indicates [methyl iodide] is highly toxic and control would have been impossible," he says. "This chemical should not be used for fumigation, period. One would hope two years down the road, they would not come back and say they want it reconsidered."
Mary Duan contributed to this report.