The lawsuit over California's approval of a controversial pesticide might 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 yesterday, Alameda County Superior Court Judge Frank Roesch presided over a one-day trial about methyl iodide, a fumigant approved by state regulators in December 2010.
Environmental and farm worker groups sued the state, along with chemical manufacturer Arysta LifeScience, 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 methyl iodide and ignored the concerns of its own scientific advisers.
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Earthjustice's Greg Loarie, representing the plaintiffs, came to the courtroom armed with diagrams and spreadsheets, geared up to give a technical brief on finer points of pharmacokinetic and uncertainty factors, iodide absorption rates, and other 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 the chemical company, Arysta.
But the judge quickly seized on a different point.
Under the California 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 meant 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 Department of Pesticide Regulation, couldn't produce such a document.
"Absent that," Roesch said, "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 Department of Pesticide Regulation 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 e-mails – obtained earlier in a public records request by KQED/QUEST – revealing dissent from department staff scientists over whether science by Mary-Ann Warmerdam, who had led the state's Department of Pesticide Regulation, had been sound. The e-mails come from two staff scientists – Lori Lim and Ruby Reed – who have since left the agency.
A lawyer for Arysta argued that the plaintiffs were overplaying the Lim and Reed e-mails 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," Dennis said. "And, as the court knows, the agency is allowed to pick which experts it relies on."
In the end, the deciding issue may be process, rather than science.
Roesch gave the attorneys a week to draft a brief to persuade him that the Department of Pesticide Regulation is not required to follow CEQA. Earthjustice lawyers will then have a week to respond. Roesch will then issue a final ruling on whether the state violated California law when it approved methyl iodide.
After the hearing, a spokesman for Arysta was unwilling to comment, citing the absence of a final ruling from the judge.
Paul Towers of the Pesticide Action Network said the judge's comments left him feeling optimistic. "We're hopeful that he'll ultimately rule that methyl iodide was unfairly approved in California," he said.
But in focusing on procedural issues rather than science, was the judge neglecting what plaintiffs consider to be the essential question, namely: Is methyl iodide safe to use?
Towers said: "There is no debate, as the scientific community has said time and time again, that methyl iodide causes serious health effects. The real debate is whether the state followed its own process and whether political appointees at the top ignored scientists in their own agency."