Judge Puts Onus on State to Prove It Considered Methyl Iodide Alternatives
Amy Standen
KQED
01/12/2012
The lawsuit over California's approval of a controversial pesticide may hinge on a seemingly straightforward question: Did regulators ever ask themselves what would happen if they didn't approve methyl iodide?
In an Oakland courtroom today, Alameda Superior Court Judge Frank Roesch presided over a one-day trial about the pesticide, a fumigant approved by state regulators in December, 2010.
Environmental and farm worker groups sued the state, along with Arysta LifeScience, which produces methyl iodide, in January, 2011, contending that the chemical puts farm workers at risk of cancer or miscarriage. They said the state used bad science in approving the chemical, and ignored the concerns of its own scientific advisers.
Earthjustice's Greg Loarie, representing the plaintiffs, came to the courtroom armed with diagrams and spreadsheets, geared up to give a technical brief on the finer points of pharmacokinetic and uncertainty factors, iodide absorption rates and other eye-glazing toxicological issues. His goal was to prove that the state had cherry-picked its data and methods in order to arrive at a conclusion amenable to methyl iodide manufacturer Arysta.
But Judge Roesch quickly seized on a different point.
Under California's Environmental Quality Act, state agencies must consider alternatives to its proposed decisions, what's known as a “no-project alternative.” In this case, that could have included evaluating alternatives to methyl iodide, or the possibility of approving the chemical at more conservative exposure levels.
Under questioning from Roesch, Deputy Attorney General Cecilia Dennis, representing the DPR, couldn't produce a document showing the agency had complied with this stipulation. "Absent that," said Judge Roesch, "I don't see how you can prevail in this lawsuit."
Dennis argued that such a consideration was implicit in the overall document. She said the DPR leaves it up to local agricultural districts to weigh the pros and cons of using the chemical, a process that effectively serves as a no-project alternative.
Despite Roesch’s focus on the regulatory process, science did make its way into the courtroom.
Earthjustice’s Loarie pointed to emails – obtained earlier in a public records request by KQED/QUEST – revealing dissent from DPR staff scientists over whether Warmerdam’s science had been sound. The emails come from two staff scientists – Lori Lim and Ruby Reed – who have since left the agency.
A lawyer for Ayrsta argued that plaintiffs were overplaying the Lim and Reed emails in order to "manufacture" a story of dissent within the agency. He quoted another staff scientist who, memos showed, had found the approval levels to be reasonable.
"This case is a battle of the experts," said Dennis. "And, as the court knows, the agency is allowed to pick which experts it relies on."
In the end, though, the outcome may rest on process rather than science.
Judge Roesch gave the attorneys a week to draft a brief persuading him that DPR is not required to follow CEQA. Earthjustice lawyers will have a week to respond. Judge Roesch will then issue a final ruling on whether or not the state violated California law when it approved methyl iodide.
