Bill to Curb Challenges to State Pest Spraying Pushed

Last July, as state agriculture officials prepared to wage a pesticide war against a tiny bug infesting Northern California’s apple crop, a Superior Court judge temporarily blocked their effort, ruling that no one had considered the environmental consequences.

The ruling was the second legal setback within a year for the state’s pest eradication program. And it raised doubts among farmers about the Department of Food and Agriculture’s ability to protect California’s $14-billion-a-year agricultural industry.

Now, with less than a week remaining in the Legislature’s 1985 session, the Deukmejian Administration is quietly attempting to push through a bill to help assure that no one interferes with its future pest eradication efforts. There has been very little public discussion of the measure, which is backed by influential farming interests.

Heavily opposed by environmentalists and consumer groups, the legislation would wipe out requirements for long environmental impact reports and radically diminish the public’s ability to block pesticide spraying through court action.

Courts no longer would be able to consider the public health consequences of any pest eradication program, even when spraying is contemplated in densely populated metropolitan areas--such as the 1983 aerial pesticide assault against the Mexican fruit fly in Los Angeles.

“The great fear is that the public won’t be able to challenge decisions of the state to protect their homes and neighborhoods,” said Michael Paparian, a Sierra Club lobbyist. “Checks and balances are needed and the ability to challenge in court is one of those checks.”

State food and agriculture officials, however, contend that the weight has swung too far in favor of those who would block pesticide use.

“We are finding that some judges are trying to make biological decisions and we think that’s something that the director (of food and agriculture) and his scientific staff ought to be doing,” Hans Van Nes, deputy director of food and agriculture, told The Times. “We are given the responsibility to protect the state against pests. We’ve had trouble doing it, so we’ve gone to the Legislature.”

The bill, carried by Democratic Assemblyman Norman Waters of the tiny gold country town of Plymouth in Amador County, originally was a non-controversial measure dealing with a completely different subject. As such, it had sailed through the Assembly without a dissenting vote.

Replacement of Contents

But late last month--in a maneuver often used in the final weeks of a legislative session to avoid potentially fatal public hearings--the original contents were stripped from the bill and replaced by the provisions dealing with pest eradication.

The new measure, proposing major changes in court procedure and environmental regulations, currently is awaiting action on the Senate floor, which could come as early as today.

As of Monday afternoon, the bill was resting relatively unnoticed on the Senate Consent Calendar, grouped with a large packet of non-controversial bills scheduled to be routinely taken up and passed en masse without debate.

Food and Agriculture Director Clare Berryhill already has broad powers to order pesticide spraying--bypassing environmental requirements and other legal impediments--whenever there is an immediate threat to the state’s agricultural industry. That procedure was used in 1981 when Gov. Edmund G. Brown Jr., after initially opposing aerial spraying, agreed to wage a pesticide war against the Mediterranean fruit fly.

Official Hesitancy

But more recently, state officials have been hesitant to declare an emergency. For one thing, they are required by law to prove that agriculture faces an immediate danger. Beyond that, they are wary of stirring up a political controversy.

In less serious cases, state law allows the public to challenge pesticide spraying at any time on a variety of grounds. These include scientific evidence that the pesticide proposed for use is dangerous, or that there are other less hazardous or less costly options available.

Under the Administration-sponsored bill, opponents would have 30 days to lodge challenges. Currently, there is no time limit.

Food and Agriculture’s Van Nes argues that there is a very short “window of time” during which a spraying program is most effective, and contends that opponents often “come in at the last moment” and overwhelm the court with mounds of scientific materials that later turn out to be irrelevant.

Also under the proposal, the courts would not be allowed to consider any scientific evidence. Their rulings would be limited to whether the state had “abused its discretion” in ordering the spraying.

The measure additionally would scrap a requirement that the Department of Food and Agriculture develop an environmental impact report. State officials contend there is no need for the reports since the pesticides themselves have been found safe for application on crops and therefore are not dangerous when used even in populated areas.

Finding Challenged

That conclusion has been challenged on numerous occasions by scientists and consumer groups. A UC Davis researcher, for example, found in 1983 that a pesticide used to fight the Japanese beetle can cause severe nerve damage and paralysis in animals. Debate also continues over the health effects of such commonly used pesticides as malathion, which was employed in the massive aerial spraying battle against the Mediterranean fruit fly.

Backers of the legislation point to court rulings that held up spraying against the gypsy moth, an urban pest that attacks trees, and the apple maggot, which threatened apple crops in Humboldt County.

In the gypsy moth case, a Santa Cruz Superior Court judge blocked the use of a pesticide and instead ordered application of a non-chemical agent. No gypsy moths have been found since the state began that court-ordered treatment.

In the case of the apple maggot, a Humboldt County Superior Court judge ordered a full environmental impact report. Berryhill refused the order and instead canceled the eradication program. In the meantime, the apple maggot infestation has been spreading south from Humboldt County but has not yet reached the areas to the south where the bulk of the state’s apple crop is grown.

Ulterior Motives Seen

Critics of Berryhill, a former state legislator, believe his action was aimed at creating hysteria among farmers and legislators to generate support for a measure that would undermine the court’s authority.

“They wrote the bill to make sure they wouldn’t lose any more cases,” contended Judith Bell, a lobbyist for Consumers Union.

Bell noted that the bill applies not only to major eradication efforts, but to routine pest control programs, some of which can continue for five years or more even though there is no immediate danger to the agricultural industry.

Other opponents of the legislation pointed out that court orders had blocked only two out of 20 state spraying programs in the last five years.

William J. Thomas Jr., lobbyist for a variety of large agricultural interests, acknowledged that farmers generally have gotten their way over the years with state spraying. But he said the two recent cases raised fears that environmentalists were establishing a legal “beachhead” in an effort to destroy farmers’ abilities to protect their crops.

Trend Perceived

“We were undergoing what we thought was a history of consistent action with 18 (pest eradication) cases going smoothly,” Thomas said. “Then all of a sudden the gypsy moth case arose. Then the very next case, here comes the apple maggot. It seems to be a trend.”

There have been several attempts thus far to negotiate a compromise between agriculture officials and opponents. But little progress has been reported.

The Sierra Club and other opponents hope they can persuade lawmakers to delay action until January when the Legislature reconvenes so that the bill can be subjected to a full round of public hearings.