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.
After the hearing, a PR representative for Arysta was unwilling to comment, citing the absence of a final ruling from the judge.
Paul Towers of Pesticide Action Network said the judge's comments had left him feeling optimistic. "We're hopeful that he'll ultimately rule that methyl iodide was unfairly approved in California."
But in focusing on procedural issues, was the judge neglecting what plaintiffs consider to be the essential question, namely, is methyl iodide safe to use?
Towers replied, "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."
Update 1:30 p.m. The hearing is now over. Reading Amy Standen's tweets from the courtroom, it looks like the judge has put the burden of proof on the state to justify its decision to approve methyl iodide.
The legal battle over methyl iodide is underway at Alameda County Superior Court in Oakland. KQED's Amy Standen is tweeting live from the courtroom.
The case concerns the California Department of Pesticide Regulation's 2010 decision to approve methyl iodide for use as a fumigant. The chemical's manufacturer, Arysta LifeSciences, was hoping growers would use it as a substitute for methyl bromide, which has been deemed an ozone-depleting substance and is being phased out.
During the approval process, DPR asked its scientists to determine a safe level of methyl iodide exposure for farm workers. It also turned to a panel of external researchers to vet the process. The final safe limit the experts came up with was .8 parts per billion.
But when the state announced its regulations, that number had swollen to 96 parts per billion. Emails and other documents obtained through a public records request suggested that dismayed scientists were unclear about the origins of the 96 ppb figure, and that a deep rift over the approval developed between the scientific evaluators and the agency's managers.
Environmental and farmworker groups have since sued the state.
Lab studies in rats have shown exposure to methyl iodide can cause miscarriages and cancer. Case studies of humans show it can cause brain damage.
Methyl iodide was approved by the federal EPA in 2007, over the concerns of 54 scientists who urged the agency in a letter (pdf) to prevent its registration.
California's approval of methyl iodide was also the subject of a joint hearing by the state legislature in February.
Click here for our previous methyl iodide coverage, including this Amy Standen interview with an executive from the company's manufacturer, conducted in an attempt to figure out where the number for the higher exposure level came from.
Click on the play button below to start the live Twitter feed from Amy Standen...
As a side note, the proceedings got underway only after an unexpected delay occurred. If you're looking for a concrete example of how budget cuts have affected the smooth functioning of the state, Amy Standen's earlier tweets illustrates...