Summary of a Recent
Judicial Development in
Environmental Law

California Department of Food and Agriculture Must Conduct
Its Own Environmental Assessments

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Californians for Alternatives to Toxics v. Department of Food and Agriculture, 38 Cal. Rptr. 3d 638 (Cal. Ct. App. 2005), the Court of Appeals for the First District of California reversed and remanded the decision of the Superior Court of San Francisco, which had denied the plaintiffs' petition for writ of mandate and request for injunctive relief. The plaintiffs opposed the findings of the California Department of Food and Agriculture (Department) regarding the emergency pest control program. The instant court held that the Department abused its discretion by relying on a certified regulatory program rather than conducting its own environmental analysis of the use of pesticide products.

Background

The glassy-winged sharpshooter, a primary carrier of Pierce's disease, posed a severe threat to California's winegrape production. Id. at 639. In response to the threat, the Department began an emergency program to stop the spread of the sharpshooter and Pierce's disease. Id. at 640. In March 2001, the Department issued a notice of preparation of an environmental impact report (EIR) for the permanent Pierce's Disease Control Program (PDCP), and approximately one year later, the Department issued its Draft EIR (DEIR). Id. at 641.

Appellants Californians for Alternatives to Toxics, Public Employees for Environmental Responsibility, and People Opposed to Insecticide Spraying on Neighborhoods submitted comments that were critical of the DEIR. Id. at 643. It criticized the DEIR for its: reliance on compliance with existing pesticide regulations as adequate to protect human health; risk evaluations of carbaryl, pyrethroids and imidicloprid, as well as its failure to address the issue of impacts of additives in pesticide formulations; purported lack of disclosure and inadequate risk assessment of impacts of pesticides on sensitive populations; statements sanctioning the deferred analysis of impacts on endangered species; findings that impacts from pesticide use on pest management programs and organic farming would be less than significant; cumulative impacts assessment; failure to evaluate how alternatives to pesticides might be used in combination with one another or in conjunction with conventional pesticides; and failure to evaluate mitigation measures that could minimize significant impacts detailed in their comments. Id. at 643-44. In May 2003, the Department issued its final EIR, which concluded that "[c]ommenters [had] not identif[ied] any new significant environmental impacts not addressed in the EIR." Id. at 644. Appellants filed suit in June 2003. Id. After the trial court denied their petition for writ of mandate and request for injunctive relief, appellants filed the instant appeal.

Arguments

Appellants alleged that the Department did not independently evaluate the impacts of the PDCP's proposed statewide use of multiple pesticides, but instead, impermissibly relied solely on the certified regulatory program of the California Department of Pesticide Regulation (DPR) to conclude that there were no significant adverse impacts. Id. at 645.

The Department argued that it should not be required to duplicate the work of DPR. Id. at 649.

Analysis and Holdings

Although the Department's duty under the California Environmental Quality Act (CEQA) required it to analyze the effects of pesticide use and necessarily take into account the distinct regulatory scheme of DPR, the court held that "sole reliance on DPR's registration of pesticides and its regulatory program, including safety regulations for employees handling pesticides (Cal.Code Regs., tit. 3, § 6720 et seq.), [was] inadequate to address environmental concerns under CEQA." Id. at 647-48. The court further explained, "DPR's registration does not and cannot account for specific uses of pesticides in the PDCP, such as the specific chemicals used, their amounts and frequency of use, specific sensitive areas targeted for application, and the like." Id. at 648. Therefore, the court concluded that the Department "abused its discretion by failing to fulfill its obligation under CEQA to analyze the environmental effects of statewide pesticide use under the rapid response and containment elements of the PDCP." Id. at 651.

The case was decided on October 20, 2004.