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GWSS Complaint June 2003
Sharon E. Duggan CSB 105108
LAW OFFICES OF SHARON E. DUGGAN
2070 Allston Way Suite 300
Berkeley, CA 94704
Julia A. Olson CSB 192642
Wild Earth Advocates
1646 E. 19th Ave., Suite A
Eugene, OR 97403
Attorneys for Petitioners
CALIFORNIANS FOR ALTERNATIVES TO TOXICS, a nonprofit corporation; PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, a non-profit corporation; and PEOPLE OPPOSED TO INSECTICIDE SPRAYING ON NEIGHBORHOODS, an unincorporated association,
Petitioners,
v.
CALIFORNIA DEPARTMENT OF FOOD AND AGRICULTURE; and DOES 1 through 30,
Respondents.
_____________________________________/
CASE NO:
PETITION FOR WRIT OF MANDATE AND INJUNCTIVE RELIEF AND ATTORNEYS' FEES
[CEQA: Pub. Res. Code 21167]
1. Petitioners, in bringing this action, challenge the May 28, 2003 approval by the California Department of Food and Agriculture ("CDFA") of the Pierce's Disease Control Program. Petitioners, Californians for Alternatives to Toxics ("CATs"), Public Employees for Environmental Responsibility ("PEER"), and People Organized Against Insecticide Spraying on Neighborhoods ("POISON"), are citizen groups concerned with the protection of the environment and compliance with environmental laws, including the California Environmental Quality Act, Pub. Res. Code section 21000 et seq. ("CEQA"). CDFA has certified an environmental impact report ("EIR") for the Pierce's Disease Control Program that fails to consider the risk and adverse environmental impacts of the use of pesticides to control the glassy-winged sharpshooter and Pierce's disease. Rather than consider and evaluate the impacts of the use of harmful and dangerous chemical controls, CDFA ultimately ignored such use, thereby ignoring impacts to water quality, soils, air quality and the human and natural environments.
2. Petitioner, CALIFORNIANS FOR ALTERNATIVES TO TOXICS ("CATs") is a nonprofit public interest group, which has advocated on behalf of its members regarding herbicide use in forests and other uses of pesticides for twenty-one years. CATs seeks to voice and advocate public concerns regarding toxic chemicals in the environment through organizing, education, advocacy and building community leadership. This mission is grounded in a broader concern about the sustainability of the environment. CATs and its members are actively involved in local, regional, national and international government and regulatory processes concerning the use of toxic chemicals, including pesticides and herbicides such as those used to remove unwanted species.
3. Petitioner, PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY ("PEER") is a national non-profit corporation based in Washington, D.C. with chapters throughout the United States, including California. PEER represents current and former federal, state and municipal employees of land and forest management, wildlife protection, and pollution control agencies who are frustrated by the failure of governmental agencies to enforce their statutory environmental mandates. Over 1200 Californians are members of PEER, a number larger than all other States, individually. PEER members working for government agencies are frequently caught in a conflict between their duties as employees of a State agency, their ethical beliefs, and the risk of disciplinary action for insubordination. Consequently, PEER members rely on PEER to bring this action on their behalf. PEER members in California include professional biologists, botanists and water quality engineers who oversee implementation of state and federal statutes and regulations designed to safeguard fish and wildlife resources, water quality, and other ecological values that may be harmed by the application of insecticides as proposed by the California Department of Food and Agriculture. The adverse impacts on wildlife, air quality, healthy ecosystems and water quality from the application of insecticides and herbicides on private and public lands affect the people of the State of California. PEER members work for public agencies with trustee responsibility for protecting water quality and fisheries and wildlife habitat. PEER brings this action on behalf of itself and its adversely affected members.
4. Petitioner, PEOPLE OPPOSED TO INSECTICIDE SPRAYING ON
NEIGHBORHOODS ("POISON"), is an unincorporated association of concerned citizens in
Napa County seeking an end to forced pesticide spraying of toxins on neighborhood homes,
schools, elderly centers, hospitals, medical clinics, and public lands to combat the glassy-wing
sharpshooter. POISON seeks alternatives to pesticide use to provide a healthier and safer
physical and social environment.
5. Members of petitioners depend on their livelihood, health, culture and well-being
on the viability of vegetation and land throughout California. Petitioners' members live
throughout California. Petitioners' members rely upon water from throughout California. The
quality of the air the members breathe depends on the air quality where they live and work in
California. Members of petitioners also observe, study, recreate, gather or otherwise enjoy the
biologic, scientific and aesthetic benefits throughout California. Members of petitioners have
an interest in knowing that California remains alive with wildlife and natural wonders, still
beautiful and available to enjoy and utilize when they choose.
6. The above-described health, recreational, scientific, cultural, inspirational, educational, aesthetic and other interests of petitioners will be adversely and irreparably injured by the respondent's failure to comply with CEQA and its implementing regulations. These are actual, concrete injuries to petitioners and their members that would be redressed by the relief sought herein. Petitioners have no adequate remedy at law. Uunless the relief requested is granted, will continue to be adversely affected and irreparably injured by the failure of defendants to comply with the California Environmental Quality
7. This action is commenced pursuant to Code of Civil Procedure section 382. Petitioner sue on behalf of themselves and all others similarly situated. Petitioners are comprised of residents of the State of California who are united by the following common interests of law and fact: all of the petitioners are "interested persons" in the protection of public health, aesthetic enjoyment and continued productivity of the land, in the preservation of wildlife species at self-perpetuating population levels, in environmental protection, and in the protection of domestic water supplies and water and air quality.
8. Petitioners for whom this action is commenced are so numerous that it is impractical at this time to bring them all into this action individually as parties hereto. Proof of a common or single state of facts and law will establish the right of each member wronged by the acts of Respondents as more particularly alleged herein.
9. Respondent, CALIFORNIA DEPARTMENT OF FOOD AND AGRICULTURE ("CDFA") is an agency of the State of California and is the proponent of and approved the aforementioned "Pierce's Disease Control Program Environmental Impact Report" and the "Pierce's Disease Control Program."
10. The true names and capacities, whether individual, corporate or otherwise, of DOES 1 through 30, are unknown to petitioners who therefore sue said Respondents by such fictitious names and will seek leave to amend this Petition for Writ of Mandate and Complaint when they have been ascertained.
11. Jurisdiction of this court is invoked pursuant to California Code of Civil Procedure section 1094.5; California Public Resources Code section 21168.
12. On May 19, 2000, the state legislature enacted legislation creating the Pierce's disease control program within California's Department of Food and Agriculture. Food & Ag. Code 6046. The legislation specifically states that "[t]reatment programs shall comply with all applicable laws and regulations and shall be conducted in an environmentally responsible manner." Id. at 6046(h)(4).
13. Pierce's disease is a bacterial infection that kills grapevines. It has existed in California for more than 100 years. It was not until the recent introduction of the non-native glassy-winged sharpshooter, which acts as a vector for Pierce's disease, that the disease began to spread and become a problem in agriculture.
14. In March 2002, CDFA distributed a Draft Environmental Impact Report ("DEIR") for the Pierce's Disease Control Program ("PDCP" or "Program"). The PDCP is a statewide program intended to minimize the impact of Pierce's disease in California primarily by reducing the spread and occurrence of the glassy-winged sharpshooter. The proposed Program is an effort to change an ongoing emergency CDFA program into a long-term program.
15. County agricultural commissioners or other designated agencies would have responsibility for implementation of the program in coordination with CDFA.
16. The Program will use pesticides to reduce the spread and occurrence of glassy-winged sharpshooter. The confirmation of five or more adults within any five-day period within a 300-yard radius of each other or the presence of multiple life stages will trigger an action under the Program.
17. A fifty-day public comment period for the DEIR was held beginning March 2002 when the DEIR was released. Substantial criticism was submitted by other agencies, as well as from petitioners and other public members. One of the primary areas of concern was the inadequate review given to the use of pesticides as a method for reducing the spread and occurrence of glassy-winged sharpshooter. Other issues of repeated concern included the lack of adequate information for a programmatic EIR, an adequate human health risk assessment including consideration of sensitive populations, full disclosure of pesticides to be used and analysis of potential impacts from such use, full consideration of alternatives, and mitigation measures.
18. A final environmental impact report ("FEIR") was issued in May, 2003, which included an inadequate response to comments and made no substantive changes to the DEIR.
19. The Program was approved on May 28, 2003, without a Statement of Overriding Considerations. A Notice of Determination was filed on May 28, 2003 with the Office of Planning and Research.
20. This action is timely filed.
21. At all times mentioned herein Respondents CDFA have been able to deny the approval and reject certification of the Program. Notwithstanding such ability, Respondents CDFA have failed and continue to fail to perform their duty to deny and reject the Program.
22. If Respondents CDFA are not ordered to withdraw their approval and certification of the Program, the people, land, watershed, wildlife, economic, and environmental values subject to and affected by the Program will suffer immediate, irreparable and permanent damage.
23. Petitioners bring this action on the ground that their members, as residents, landowners, citizens, and taxpayers of the State of California, will suffer irreparable injuries if Respondents' actions herein are not set aside immediately. Such injuries include, but are not limited to, deterioration of the environmental setting in which they live; deterioration of watersheds; loss of fishery resources and overall wildlife habitat; and impact to air quality.
24. Petitioners through their representatives and members have performed all conditions precedent to the filing of this petition by raising each and every issue known to it before CDFA in compliance with Public Resources Code section 21177. Petitioners, however, do not believe they are required to exhaust their administrative remedies, because to attempt to do so would be futile and petitioners do not have adequate administrative remedies.
25. Notice of the filing of this action, under Public Resources Code section 21167.5 was forwarded to the state agencies on June 25, 2003. (See attached letter, Exhibit A.)
26. Petitioners, as groups of citizens, taxpayers, residents of the State of California, and as individuals which have participated in the review of the Program and are concerned about the effects of the proposed operations of the Program on the environment, have standing to bring this action.
27. In pursuing this action, Petitioners will confer a substantial benefit on the People of the State of California and therefore are entitled to recover from Respondents reasonable attorney's fees pursuant to section 1021.5 of the Code of Civil Procedure.
28. CDFA has prejudicially abused its discretion in approving the Program challenged herein, and has acted arbitrarily and capriciously under Government Code section 800.
Count One
29. Petitioners incorporate by reference all the allegations contained in the previous paragraphs as though fully set forth herein.
30. CEQA requires that an environmental impact report provide an accurate and consistent project description. (Cal. Code Regs., tit. 14, 15124.) A project description that omits integral components of the project may result in an EIR that fails to disclose the actual impacts of the project.
31. CDFA prejudicially abused its discretion and failed to proceed according to the law in its failure to adequately disclose, among other things, aspects of the program including the full list of pesticides to be used, adequate maps of the program areas, the vulnerable habits to be affected, a description of the spread of Pierce's disease and the glassy-winged sharpshooter.
Count Two
32. Petitioners incorporate by reference all the allegations contained in the previous paragraphs as though fully set forth herein.
33. Respondents are required to disclose and analyze significant adverse effects upon the environment, and to discuss and adopt feasible alternatives and mitigation measures to eliminate or substantially reduce all significant impacts upon the environment. (Pub. Res. Code 21081; Cal. Code of Regs., tit 14., 15064 subds. (c), (h), and 15092.)
34. Respondents have prejudicially abused their discretion and failed to proceed in a manner required by law and not supported their decision by substantial evidence in that they have not disclosed, analyzed, or mitigated the Program's significant adverse effects upon the environment including, but not limited to, the effects (1) of pesticide use that will ultimately be used to control the glassy-winged sharpshooter; (2) upon beneficial insect species; (3) upon special status, or threatened and endangered species; (3) upon children and the elderly and other sensitive populations; (4) upon workers who have increased exposure to pesticides; (5) of toxicity to the environment from the insecticide formulations identified; and (6) upon wildlife and fisheries.
Count Three
35. Petitioners incorporate by reference all the allegations contained in the previous paragraphs as though fully set forth herein.
36. Respondents CDFA are required to consider and adopt feasible alternatives to substantially lessen significant adverse effects on the environment. (Pub. Res. Code 21002, 21102.1(a), 21100(b)(4); Cal. Code Regs., tit. 14, 15126(a).) CEQA requires government agencies "to consider alternatives to proposed actions affecting the environment." (Pub. Res. Code, 21001, subd. (g).) Moreover, "CEQA establishes a duty for public agencies to avoid or minimize environmental damage where feasible." (Cal. Code Regs., tit. 14, 15021, subd. (a); Pub. Res. Code 21001, 21002.1.)
37. In enacting CEQA, the Legislature intended that the statute would help "[p]revent the elimination of fish or wildlife species due to man's activities, ensure that fish and wildlife populations do not drop below self-sustaining levels, and preserve for future generations representations of all plant and animal communities . . . ." (Pub. Res. Code, 21001, subd. (c).)
38. Respondents CDFA prejudicially abused their discretion and failed to proceed in a manner required by law and did not support their approval of the Program with substantial evidence in that the Program does not incorporate all feasible alternatives or mitigation measures which would substantially reduce all significant adverse impacts on the environment. The Program does not contain an adequate written analysis of feasible alternatives and mitigation measures designed to reduce the significant adverse environmental effects of the Program. CDFA did not perform an analysis, and was thus in violation of California Code of Regulations, title 14, sections 15021, 15126, and Public Resources Code sections 21001, 21002.1 through its failure to consider, and evaluate, among other things, a viable integrated pest management ("IPM") alternative that would combine prevention, planning, monitoring and control measures, and serve as a non-toxic alternative to spraying in public and private areas, including but not limited to people's backyards, public spaces, agricultural areas, nurseries, and along roadsides.
Count Four
39. Petitioners incorporate by reference all the allegations contained in the previous paragraphs as though fully set forth herein.
40. "Cumulative impacts" are defined as "two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts." (Cal. Code Regs., tit. 14, 15355.) "The cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time." (Id., subd. (b).)
41. The Program's EIR is deficient in that it failed to adequately discuss cumulative impacts related to the use of chemical controls and their toxicity, including but not limited to the public and private use of pesticides and their adverse impacts, the area of geographic impact, the effects on sensitive and other populations, the effects on sensitive species, the collective impact upon air and water quality, and the impact upon and loss of beneficial insects and other species.
42. Respondents have prejudicially abused their discretion and failed to proceed in a manner required by law in that they failed adequately to discuss, analyze, or require a discussion and analysis and mitigation of cumulative impacts which shall result from the actions proposed by the Program.
Count Five
43. Petitioners incorporate by reference all the allegations contained in the previous paragraphs as though fully set forth herein.
44. Public Resources Code section 21002 creates a substantive policy by which agencies are forbidden to approve projects which have significant environmental impacts when feasible mitigation measures can substantially lessen or avoid such impacts.
45. A legally adequate EIR must describe mitigation measures that could feasibly substantially reduce or avoid each identified significant effect. "If a mitigation measure would cause one or more significant effects in addition that would be caused by the project as proposed, the effects of the mitigation measure shall be discussed but in less detail than the significant effects of the project as proposed." (Cal. Code Regs., tit. 14, 15126, subd. (c).)
46. In approving the Program Respondents CDFA prejudicially abused its discretion and failed to proceed in a manner required by law because they failed to make findings and consider the feasibility of numerous mitigation measures including but not limited to the need to completely restrict the use of pesticides, by CDFA and other public agencies; the need to restrict the use of pesticides geographically and near sensitive populations and species, and the need to develop an IPM plan.
Count Six
47. Petitioners incorporate by reference all the allegations contained in the previous paragraphs as though fully set forth herein.
48. The procedural mechanism to ensure that mitigation measures are considered and adopted is set forth in Public Resources Code section 21081 and California Code of Regulations, title 14, sections 15091 and 15093. Public Resources Code section 21081 and California Code of Regulations, title 14, section 15091 require agencies to make specific findings before they can approve projects with significant environmental effects. Agencies cannot approve projects with significant environmental effects unless they find either that such effects can be avoided or substantially lessened by the adoption of mitigation measures or project alternatives; that other agencies with jurisdiction over the projects have adopted such alternatives or mitigation measures; or that mitigation measures or alternatives are infeasible due to specific economic, social, or other considerations.
49. Respondents CDFA are required to determine the effect of the program as a significant impact upon the environment if the program has the potential to substantially reduce the habitat of a fish or wildlife species; cause a fish or wildlife population to drop below self-sustaining levels; achieve short-term environmental goals to the disadvantage of long-term environmental goals; or cause environmental effects which are individually limited but cumulatively considerable. (Cal. Code Regs., tit. 14, 15065 subd. (a), (b), and (c).)
50. Appendix G to the CEQA Guidelines describes numerous kinds of impacts that the Resources Agency has determined constitute "mandatory findings of significance." These include "the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, . . .threaten to eliminate a plant or animal community, ... [or] have impacts that are individually limited, but cumulatively considerable, have environmental effects which will cause substantial adverse effects on human beings, either directly or indirectly."
51. Various comments identified the program's significant impacts; in response, CDFA ignored the comments. This disregard of identified potential impacts to fish and wildlife, water quality, air quality, plant populations, as well as the cumulative impacts, must therefore still be considered significant. Respondents simply have not successfully mitigated the impacts.
52. Respondents CDFA prejudicially abused their discretion and failed to proceed in a manner required by law under California Code of Regulations, title 14, sections 15091, 15092, and 15093, in that CDFA has failed to identify the significant environmental effects of the Program and has approved the Program without making written findings for each of these significant effects as required by California Code of Regulations, title 14, section 15091; CDFA has approved the Program and has not eliminated or substantially lessened all significant effects on the environment where feasible or determined that remaining significant effects on the environment are acceptable due to overriding concerns as required by California Code of Regulations, title 14, section 15092; and CDFA has failed to issue a statement of overriding considerations with its approval as required by California Code of Regulations, title 14, section 15093.
53. Because of the numerous significant or presumptively significant impacts enumerated above, CDFA was required to devise specific, concrete, mitigation measures or alternatives which would substantially reduce or avoid those impacts. (Pub. Res. Code, 21002, 21081; Cal. Code Regs., tit. 14, 15091.) In addition, if such project modification could not eliminate all significant impacts, CDFA was required to issue a statement of overriding considerations. (Cal. Code Regs., tit. 14, 15093.) CDFA has breached these duties and prejudicially abused its discretion and failed to proceed according to the law in its failure to devise and require mitigation measures, alternatives, and adopt findings.
Count Seven
54. Petitioners incorporate by reference all the allegations contained in the previous paragraphs as though fully set forth herein.
55. "The evaluation and response to public comments is an essential part of the CEQA process. Failure to comply with the requirement can lead to disapproval of a project." ("Discussion" following Cal. Code Regs., tit. 14, 15088.) By forcing the approving agency to acknowledge, summarize, and respond to the public's concerns, the requirement "enable[s] the public to determine the environmental and economic values of their elected and appointed officials thus allowing for appropriate action come election day should a majority of the voters disagree." (Cal. Code Regs., tit. 14, 15003, subd. (e).)
56. To pass legal muster, an agency's responses to comments must specifically explain the reasons for rejecting suggestions received in comments and for proceeding with a project despite its environmental impacts. Such explanations must be supported with specific references to empirical information, scientific authority, and/or explanatory information. The responses, moreover, must manifest a good faith, reasoned analysis; conclusory statements unsupported by factual information will not suffice. (Cal. Code Regs., tit. 14, 15088.)
57. Respondents CDFA did not proceed according to law and have not supported the decision by substantial evidence. CDFA thus prejudicially abused its discretion in that the FEIR for the Program is inadequate in ways which include, but are not limited to, its failure to evaluate and respond in nonconclusory fashion to all issues raised during the review process. This failure includes, but is not limited to, the failure to adequately respond to public comments regarding the need for an adequate human health risk assessment, failure to provide an adequate project description, lack of adequate analysis of significant impacts, failure to develop a viable IPM alternative, the impacts of use of insecticides upon beneficial insects, carcinogenicity and neurotoxicity and other significant health effects of the chemicals identified for use, the combined effect of use of chosen chemicals by private and public users; failure to address academic and governmentally sponsored science contradicting the EIR's conclusions; and lack of response to scientific data and evidence submitted.
58. In this case, Respondents CDFA have prejudicially abused their discretion and failed to proceed in a manner required by law in that they did not issue evaluations and responses to environmental concerns which provided, inter alia, a response to significant environmental concerns raised. These concerns included, but are not limited to, the impacts of the Program upon special populations, special status species, and beneficial insects.
Count Eight
59. Petitioners incorporate by reference all the allegations contained in the previous paragraphs as though fully set forth herein.
60. CEQA requires that whenever an agency finds that potential adverse impacts exist which can be mitigated, it is required to adopt a mitigation monitoring program to ensure that the mitigation measures are followed. (Pub. Res. Code 21081.6.)
61. Respondents have prejudicially abused their discretion in that they have failed to adopt a legally adequate reporting or monitoring program for mitigation measures for the Program.
62. Petitioners incorporate by reference all the allegations contained in the previous paragraphs as though fully set forth herein.
63. The Program as approved by CDFA will cause irreparable injury and harm to the petitioners and the public at large. Its environmentally significant impacts have not been adequately evaluated, much less mitigated to a less than significant level, and feasible and reasonable alternatives have not been properly evaluated by CDFA.
64. The errors and prejudicial abuse of discretion by CDFA constitute the basis for injunctive relief to prevent this irreparable injury pursuant to Code Civil Procedure section 526.
WHEREFORE, Petitioners pray for judgment as follows:
1. For a Writ of Mandate ordering Respondents CDFA to withdraw the May 28, 2003 approval of the Program and to follow California regulations and statutes, including the California Environmental Quality Act, in any review of and decision on the Program.
2. For a preliminary injunction and permanent injunction enjoining Respondents from engaging in any activity pursuant to the Program until the Program meets California regulations and statutes, including requirements of the California Environmental Quality Act;
3. For reasonable attorney's fees under California Code of Civil Procedure section 1021.5, and Government Code section 800;
4. For costs of suit;
5. For such other and further relief as the court deems proper.
Dated: June 25, 2003 Respectfully submitted,
By ________________________
SHARON E. DUGGAN
Attorney for Petitioners
I, SHARON E. DUGGAN, state:
I am an attorney of record for the Petitioners herein. I have read the foregoing Petition for Writ of Mandate and Complaint for Injunctive Relief and Attorneys' Fees, and know its contents. The same is true of my own knowledge. I have personally reviewed and am familiar with the files and records and proceedings described in and the subject of the present petition and know the facts set forth in the petition to be true and correct. This Verification is signed by me rather than by the Petitioners=cause I have my office in Berkeley, in Alameda County, a different County than where the Petitioners reside and their offices exist, in Humboldt, Napa and El Dorado Counties, and they are not able to sign the verification.
I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on June 25, 2003 in Berkeley, California.
_______________________
SHARON E. DUGGAN
I, SHARON E. DUGGAN, declare:
I am, and was at the time of the service hereinafter mentioned over the age of eighteen and not a party to the above-entitled cause. My business address is 2070 Allston Way, Suite 300 in Berkeley, California 94704 and I am a resident of or employed in the County of Alameda, California.
On June 26, 2003 I caused the attached Petition for Writ of Mandate and Complaint for Injunctive Relief and Attorneys' Fees and Request for Preparation of Record to be served on the attorney general addressed as follows:
Bill Lockyer
California State Attorney General
455 Golden Gate Avenue Suite 11000
San Francisco, CA 94102
XXX BY FIRST CLASS MAIL by depositing a sealed envelope in the United States Postal Service in the ordinary course of business on the same day it is collected in San Francisco, California postage fully prepaid.
____ BY FACSIMILE MACHINE by personally transmitting a true copy thereof via a facsimile machine at approximately ____ a.m./p.m. on ____________________.
____ BY FEDERAL EXPRESS or UNITED PARCEL SERVICE overnight delivery by personally depositing in a box or other facility regularly maintained by Federal Express or United Parcel Service, an express service carrier, or delivered to a courier or driver authorized by said express service carrier to receive documents.
____ BY HAND DELIVERY by personally delivering a true copy thereof in an envelope addressed to the parties identified above at the addresses given for those parties.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on June 26, 2003 in Berkeley, California.
____________________________
SHARON E. DUGGAN
