This week attorneys for environmental and farm worker groups filed their opening brief in the lawsuit over California's controversial approval of the pesticide methyl iodide, which is primarily used on strawberries. When the state approved methyl iodide, it set exposure levels for farm workers 120 times higher than the state's staff scientists believed to be safe. Since the approval, internal documents have come to light showing a deep rift between DPR staff scientists who believed that methyl iodide was too hazardous for farmworkers, and the DPR managers who approved it.
Methyl iodide opponents say the chemical will put agricultural workers and communities who live near farms at risk of cancer, miscarriage and brain damage, and want the state to revoke its approval. The defendants – California's Department of Pesticide Reform (DPR) and Arysta Lifescience – have until late November to craft their response, before oral arguments begin in January.
To find where things stand, I called Greg Loarie, an attorney at the environmental law firm Earthjustice, representing two farm workers and Pesticide Action Network North America, the plaintiffs in the case.
This brief is so technical it comes with its own glossary. Is the judge going to understand it?
I think there's some jargon involved, certainly. But some of the claims are incredibly straightforward, including the claim that the DPR failed to look at any alternative to registering methyl iodide, which is a clear violation of the California Environmental Quality Act.
When we get into the science and the regulatory target levels, it does get more complicated. But I'm confident that the staff at DPR was clear enough about what it was doing that the court is going to be able to follow it.
The central complaint seems to be what we've been hearing from state scientists all along: That their concerns about farm worker safety were ignored.
The people of California have an expectation that the scientists who were hired to do the work and to understand the risks involved in using methyl iodide, that their voices will be heard.
This is a classic case where staff scientists did a lot of work and came to a conclusion, and then management bowed to pressure from industry and changed course without any rationale. And that's just not legal.
One of the complaints is that the DPR "didn't provide any rationale" for its decision. Is that illegal? It's up to DPR managers to determine these regulatory levels. Are they obligated to explain to the rest of us how they did it?
One thing the California Environmental Quality Act considers is that the public does have a right to at least understand the basis of the decision. It's not sufficient for them to basically pull a number out of the air. They have to show their work.
Initially, the DPR denied the plaintiff's request for a number of internal documents, on the grounds that they were "deliberative," and therefore private. Ultimately, a judge demanded that those documents be released. Which were most useful to you?
There are several docs that are illuminating. One of them is the 2/16/10 memo in which Arysta [[the company that produces methyl iodide]] details discussions in which the DPR and Arysta essentially agreed upon new regulatory target levels for MI.
What's interesting is that that memo was not in the stack of documents that came to us after the court order. It was referenced in one of the documents we received, so I called the opposing council and said "I don't see this memo, where is it?" Lo and behold, they found it in their files.
This opening brief also mentions neurotoxicity – the question of whether methyl iodide can cause brain damage, particularly in developing fetuses or in children. Can you explain what the legal complaint there is?
We're very fortunate in California to have law called the Birth Defect Prevention Act. It requires that the agency studying the pesticide have some sort of information regarding its neuro-toxicity before it makes a decision. And in this case it's very clear that the only study that DPR had regarding neuro-toxicity was inadequate. They didn't have the information before them when they made this decision.
Meanwhile, is anyone actually using methyl iodide?
There's just been another application [by a grower receiving permission to use methyl iodide on his fields] in Santa Barbara. As far as we know, there have been four applications, all in the Central Valley, and for crops like peppers. This one would be the first application for strawberries that we're aware of.
Is this the time of year you'd expect to see applications ramping up?
It's actually getting to the end of the year. Our understanding is that August-October are the big months [for strawberry growers using fumigants, like methyl iodide]. We actually haven't seen many applications this year. What we've heard is that people are sticking to what they know.
In response to a request for comment, DPR spokeswoman Lea Brooks emailed this statement:
DPR registered methyl iodide after the most extensive evaluation in the department’s history concluded it can be used safely under stringent conditions without exposing workers, the public and environment to harmful levels. Registration was contingent on safeguards, including strict buffer zones around occupied schools, hospitals and similar sites, stronger worker and ground water protections, and a limitation on application rates and field size.
DPR will respond to the litigants' allegations in its reply brief to the court. We are not going to litigate this issue in the media.