A state program to guide the eradication of invasive plant pests circumvents the public process and could have grave ecological consequences, according to a lawsuit filed last week by the City of Berkeley and a suite of environmental organizations, including the Environmental Action Committee of West Marin.
The lawsuit, filed in Alameda County Superior Court, comes after the California Department of Food and Agriculture released the final environmental impact report for its Statewide Plant Pest Prevention and Management Program on Christmas Eve. The E.I.R.—a programmatic document intended to streamline future pest control and eradication efforts—included responses to a litany of criticisms during last fall’s public comment period. Concerns at the time ranged from the impacts of pesticides on organic agriculture, plants, wildlife, human health and bees to the legality of forgoing public comment periods in advance of future site-specific projects.
The department’s response did not satisfy the plaintiffs.
“All of the plaintiffs firmly believe that this programmatic E.I.R. is legally deficient, both in numerous substantive ways as well as in numerous procedural ways,” said Amy Trainer, the executive director of the Environmental Action Committee.
Her group became involved after Marshall residents and activists Donna Sheehan and Paul Reffell brought their concerns about the use of pesticides. “As soon as I started reading about the document, I was really shocked that California…would be proposing something like this,” Ms. Trainer said.
Steve Lyle, a spokesman for the Food and Agriculture Department, said he was unable to comment on the lawsuit.
Eliminating destructive plant pests, the program says, is crucial for the state’s roughly $45 billion agricultural industry, which utilizes about 31 million acres of land; left unchecked, pests cause expensive damage and threaten to permanently remove lands from agricultural use.
Under the program, the state can pursue pest control or eradication “anywhere that a pest is (or may be) found” on agricultural or residential lands. (Aerial spraying on residential lands would be subject to additional environmental analysis and public review.) Eradication can include physical and biological methods, but sometimes pesticides are the only effective method, the state argues.
The program is meant to evaluate the potential impacts of pest control and eradication and plan for mitigation and management practices. By analyzing the impacts now, the department should be able to quickly respond to invasive pests when they arise.
But for some, the E.I.R.’s process for streamlining future projects is a little too quick.
If the department decides that a new effort is “substantially similar” to activities covered in the E.I.R., it could swiftly move forward on the project. If a new effort requires a bit more analysis, the department could also prepare an “addendum” to the E.I.R. Those documents would be in the agency’s records, but would not be publicly circulated. Only if the department decides the effects of future efforts weren’t substantially evaluated in the current E.I.R. would it need to create a new report or facilitate public review.
In essence, the lawsuit claims, the E.I.R. allows the state to decide that it doesn’t need to prepare “detailed, site-specific information” as mandated by the California Environmental Quality Act or alert the general public to potential future pesticide use. “That’s very troubling,” Ms. Trainer said.
The California chapter of the Sierra Club shared concerns about public review in comments on the draft program submitted in October. Though the group, which is not part of the lawsuit, said it believed the E.I.R. was largely legally justified, the absence of public noticing was one “major exception.”
Without public review of every project, the Sierra Club said, there is no outside check on the agency’s decision-making process.
The group argued that it would be easy to add a 30-day public comment period for addendums. But the department was not persuaded. CEQA, it responded, “is very clear that no public review” of those kinds of additions are necessary. If there is a problem, it is not with the department, but with CEQA, the department said.
Ms. Trainer argued that was a “complete misinterpretation” of that law.
In addition to procedural allegations, the suit alleges that the E.I.R. itself is deficient for a host of reasons, including a failure to adequately analyze every proposed pesticide in the plan (79 are listed) or the environmental impacts of individual and cumulative pesticide use, including on sensitive species, pollinators and water bodies.
So-called “nonpoint” sources of pollution, such as stormwater runoff and erosion, are “the leading cause of water quality issues in the U.S.,” the pest plan states, but the plaintiffs claim the E.I.R. doesn’t properly assess the potential impact from those kinds of indirect sources.
Plaintiffs also single out the effect of pesticides on farming—and organic farming in particular.
Organic producers rely on the premiums their products command in the marketplace; in Marin, there is almost no market for conventionally grown food. The county’s organic farms and ranches are prohibited from using pesticides (except for those specifically approved by the United States Department of Agriculture) to keep their certification.
Should the state choose to apply pesticides to organic lands, those producers would not lose their certification, but they would be prohibited from marketing that produce as organic until after spraying has ceased.
Stacy Carlsen, the head of the county’s agricultural department, said in comments on the draft program that small producers who base their business on the farm’s identity and organic practices have no access to a conventional marketplace. “[A]ny disruption within the normal organic market pathways would force farmers to experience extreme economic hardships, as there are few, if any, marketing alternatives for their agricultural products,” he wrote.
The program does not evaluate that economic impact, he said. Producers, he went on, should be able to use “organic alternatives” or change their practices to eliminate the pests while maintaining chemical-free soils.
But the department contends that it can’t consider purely economic impacts; under CEQA, impacts have to affect the landscape, such as by converting land to non-agricultural use. And despite the financial burdens they may experience, the department claims there is no evidence—based on its previous pest eradication efforts—that organic farms would cease operating.
The department acknowledged that some pesticides are already approved for use on organic farms: sticky traps, oils, kaolin clay and sulfur. But the plan says some pests—like the glassy-winged sharpshooter (a particular threat to grapes and, therefore, the state’s billion-dollar wine industry), the Asian citrus psylid, exotic fruit flies and the Japanese beetle—cannot be combated with organic pesticides.
In a response to Marin Organic’s concerns included in the final E.I.R., the department said it would always choose “the least persistent and lowest toxicity pesticide” that actually works.
But the lawsuit says the plan didn’t fully assess the effects of pesticide drift on organic farms, “including disrupting the finely tuned ecological balance of insects, pollinators, and soil microbes cultivated by these farms.”
Ms. Trainer says the plaintiffs believe that, if the department had taken into account their litany of contentions, it would have formulated a program with a sharper focus on “ecosystem-based management.”
“I don’t support the use of toxic chemicals… I know that sometimes you have to use them in very small quantities, in very small amounts. But I have to be very convinced that’s the only way,” she said.