Light Brown Apple Moth Controversy - Legal Challenges, Public Outcry and Investigations

Legal Challenges, Public Outcry and Investigations

By June 2008, over 30 California city councils including San Francisco, Monterey, Pacific Grove, Seaside, Santa Cruz, Oakland, Albany and Berkeley had passed resolutions against the spray and over 80 environmental, health and political groups were on record opposing it. In February 2008, several legislative bills based on citizen concerns about aerial spraying in urban areas and the ability of state agencies to declare a state of emergency were drafted by state legislators. On March 13, 2008, Assemblyman John Laird, D-Santa Cruz, introduced Assembly Concurrent Resolution 117, calling on the Departments of Food and Agriculture and Pesticide Regulation, the Office of Environmental Health Hazard Assessment and other state agencies to answer unresolved questions. He stated, "It is the responsibility of our government to demonstrate its LBAM actions are necessary and do not compromise human or environmental health,” Laird said. “It isn’t the responsibility of the people to demonstrate the reverse." The resolution uses a fast track process in the state House and Senate which does not require the Governor's signature. Laird's Invasive Pest Planning Act of 2008, AB 2763, passed the Assembly Environmental Safety and Toxic Materials Committee by a vote of 4–0 on April 2 of 2008. On March 22, 2008, San Francisco Mayor Gavin Newsom wrote a public letter to the Governor urging him to study health consequences before continuing with the spray campaign. He cited relevant state legislation and asked the governor to sign the bills into law immediately.

In order to conduct the spraying, the U.S. Department of Agriculture (not the state agency) was able to obtain an "emergency exemption from registration" from the U.S. EPA. Representatives of the California Department of Pesticide Regulation say that because of that exemption, the spraying program is not subject to state approval. But Santa Cruz city Attorney John Barisone has said that the moth "isn't an emergency. We've known about it for quite a while." The legal brief he is involved in argues that the state first knew, in 1995, that the moth was "highly likely" to establish itself in the United States, but that no environmental studies were done on how best to deal the moth, resulting in the spray plan and consequent panic among residents fearful of spray effects.

In March 2008, an Associated Press investigation into the decision to award a $497,000 no-bid contract to Porter Novelli, a public relations firm tasked to promote the spraying program, described e-mails obtained by AP as indicating that a senior state contracting official questioned the contract award. The e-mails, obtained through a California Public Records Act request, also showed that a senior counsel with the California Department of General Services questioned the rationale for a no-bid contract, and admitted that he had never before been asked to approve a no-bid contract for public affairs work. The investigation also focused on an expected winner in the contract, naming Jeff Randle, a frequent campaign and political adviser to Arnold Schwarzenegger, as being promised by state officials to receive a share of the work. Randle was a campaign consultant involved in the scandal that drove disgraced state Insurance Commissioner Chuck Quackenbush from office, and was hired as a consultant for Schwarzenegger's gubernatorial campaign in 2003. A CDFA spokesperson said that U.S. Department of Agriculture would be reimbursing the state of California for much of the cost of the $497,000 PR firm contract, but could not provide any details. One day after the Associated Press published the story behind the contract, the deal was suspended.

Another contract questioned by some has been the contract for the aerial dispersal of the pheromone, given to Dynamic Aviation, an experienced Virginia aerial application company that also has government contracts with the Defense Department and Homeland Security, among others.

In an article for The California Progressive Report, the Mayor of Albany, California, Robert Lieber, RN, called for the resignation of CDFA Secretary Kawamura, citing his three main concerns: that the pheromone has not been tested for long-term human exposure risk, that the inert ingredients are toxic and carcinogenic, and that U.C. Davis scientists examining the microcapsules found that "some particles are small enough to be inhaled into the deep lung where they cannot be expelled." He described the conduct of Secretary Kawamura as a "disgraceful public deception campaign."

On September 24, 2007 Helping Our Peninsula's Environment (HOPE) filed the first suit alleging CDFA had violated California's Environmental Quality Act (CEQA) by falsely claiming their aerial spraying program was exempt from CEQA due to an emergency. A little more than one month later the County and City of Santa Cruz filed an essentially identical lawsuit.

On April 24, 2008, Santa Cruz County won their California Environmental Quality Act (CEQA) lawsuit against CDFA halting any spraying in that county until an Environmental Impapct Report (EIR) is completed. On May 8 CDFA's attorney Anita Ruud told Monterey County Judge O'Farrell the EIR is expected to be complete in January 2009. In 2008 CDFA suspended aerial spraying during the rainy season until late Spring indicating that aerial spraying in Santa Cruz County should not resume until late Spring 2009.

In response to Judge Burdick's question CDFA's attorney Bill Jenkins admitted that LBAM had done "no documented damage" to California agriculture or ecosystems. The county attorney Jason Heath cited documentation that some federal officials themselves did not consider the moth to be a serious threat, but instead described it as a "transient pest" and cited "largely untested strategies."

At the end of the hearing the Judge ruled that CDFA had abused their discretion and violated California's Environmental Quality Act when they illegally exempted their aerial spraying program from CEQA claiming the LBAM discovery in Califorina was an emergency. Judge Burdick did not find any evidence that the arrival of the light brown apple moth in California constitutes the claimed emergency. He ordered CDFA to halt the spraying program and rescind their exemption from CEQA until an Environmental Impapct Report is completed.

Just an hour later, following a meeting with State Senator Carole Migden and Marin County officials, Governor Schwarzenegger announced that the state will postpone the spray program until some tests for acute toxicity of the sprays are completed expected on August 17, 2008.

On May 12, 2008, Monterey County Superior Court Judge Robert A. O'Farrell reached a similar conclusion in an identical Monterey CEQA case brought on September 24, 2007 by Helping Our Peninsula's Environment (HOPE).

O'Farrell halted the program of aerial spraying of Monterey peninsula communities until an Environmental Impact Report is prepared. The judge ruled that CDFA had illegally exempted themselves from the California Environmental Quality Act because there was no "substantial evidence" of significant damage by the LBA moth.

On June 18, 2008 CDFA filed Notices of Appeal for both of the CEQA lawsuits they had lost. (The following day CDFA announced the abandonment of aerial spraying over populated areas. It is not known whether CDFA will pursue the appeals.)