Quick Halt to Malathion Spraying Unlikely, Legal Experts Say : Law: Cities would have to prove that malathion is dangerous and, experts say, there’s not enough evidence to sway a judge.

Experts in environmental law say Los Angeles and other Southern California cities stand little chance of winning a quick halt in court to the state’s aerial spraying of malathion, aimed at killing the Mediterranean fruit fly.

They say the cities would have to prove the spraying is dangerous. So far, they have been able to point only to studies that suggest it might be.

This weaker position is probably not enough to persuade a judge to overrule Gov. George Deukmejian, the experts said.

Deukmejian has declared, in effect, that minimal health risks are worth taking to combat the Medfly, whose presence, he contends, constitutes an emergency threat to the state’s agriculture industry.

When the governor declares an emergency, judges tend to scramble out of his way, much like motorists making room for an ambulance. Unless it can be shown that the governor turned on his “siren” irresponsibly, judges probably will not block him.

“I doubt very much that a judge would intervene,” said UCLA law professor Henry W. McGee Jr., unless there is “some very powerful proof” that spraying makes people sick.

Although the state has repeatedly used helicopters to spray small sections of Los Angeles County, the only comparable large-scale spraying of an urban area occurred in the San Francisco Bay Area in 1981 and 1982.

Legal challenges to that spraying got nowhere.

In the current fight, seven cities, including Los Angeles, have taken the state to court. It is unclear, however, how determined some of them are.

Last month, the city councils of three Orange County cities--Huntington Beach, Garden Grove and Westminster--gave their lawyers 36 hours to prepare a lawsuit asking judges to immediately stop the spraying. One Medfly expert said the Orange County lawyers were in such a hurry that they turned down his offer of information, saying they had no time to absorb it.

“We got the word at 10 p.m. on Monday (Jan. 22), and we were in court in Sacramento on the morning of the 25th,” said Huntington Beach City Atty. Gail Hutton. “I wished we had more time. We worked really hard.”

Deputy City Atty. Robert Sangster said city officials believed they had “favorable factual circumstances,” but they were aware that they faced tremendous odds in their bid to halt the spraying.

“The fact is that a mated Medfly has not been found within five miles of the city,” Sangster said. “But I think that the judge, as probably most judges are, was very reluctant to overrule a declaration of emergency by the governor. If there is a conflict, the court is going to resolve the conflict in favor of the state.”

Predictably, a Superior Court judge in Sacramento rejected these cities’ bids out of hand. The councils have not authorized further legal actions, one of the lawyers said. A similar effort by the city of Pomona in Superior Court also was dismissed, although officials there say they anticipate the council will authorize additional attempts.

Rather than ask for immediate intervention, the cities of Los Angeles, Glendale and Burbank decided to bide their time when they filed suit this week.

Keith W. Pritsker, a Los Angeles deputy city attorney who played a key role in drafting these cities’ suits, said he recognized there was almost no chance that a Superior Court judge would intervene at the drop of a hat. Therefore, Pritsker said, the cities did not ask him to.

Instead, they said in a complaint in Los Angeles Superior Court, they would ask for an injunction later--presumably in several weeks--after they had built a better case.

City lawyers said they would use the additional time and court procedures to compel the state to turn over the entire documentary record of why officials decided to spray malathion and why they believe the spraying is safe.

In essence, the cities hope to show that the governor’s emergency declaration was a sham concocted to keep agricultural interests happy and avoid the requirements of state environmental laws. The laws require a fair-minded impact study, with public participation, whenever an action such as spraying may significantly affect the environment.

They also hope the documents will show that the governor and state agricultural officials did not consider less-risky alternatives to aerial spraying such as stripping trees of fruit in affected areas and introducing a parasite known to feed on the fruit fly’s larvae.

The cities have a substantial ally in the Natural Resources Defense Council, a national, nonprofit environmental group that filed its own suit along with more than a dozen state legislators.

While the cities’ interest may be short-term--stopping the spraying to protect the health of its residents--the Natural Resources group is seeking long-range reform of pest control practices statewide.

The state says it was not required to do an environmental impact report on the aerial spraying because the California Environmental Quality Act specifically allows impact studies to be skipped in emergencies.

But the cities argue that state agricultural officials brought the disputed emergency on themselves by failing to plan alternative methods for combating the Medfly infestations that have been detected in California periodically since 1975.

As Pritsker said: “Poor planning on your part does not constitute an emergency on our part.”

Both the cities and the Natural Resources Defense Council are demanding that an environmental impact assessment be drafted.

But, in a back-and-forth argument that seems likely to intensify, Deputy Atty. Gen. Charles Getz said state agricultural officials have already completed the “functional equivalent” of an environmental impact report. The adequacy of this so-called “functional equivalent” is likely to be the key issue in court, experts said.

In the only suit that succeeded in stopping aerial spraying of a pesticide in California, Northern California environmentalists and organic farmers won an injunction in 1985 to stop the state from spraying the pesticide Imidan against an infestation of apple maggot fruit flies. The state had planned to spray Imidan statewide for up to seven years but did not carry out an environmental impact assessment or, the courts found, an equivalent study.

After a court-ordered halt to that spraying, the Legislature enacted a statute to make it easier for state agricultural officials to claim they had done an equivalent study.

The new law provided that any time the state approved a pesticide for regular agricultural use, it was the “functional equivalent” of an environmental impact report. The cities hope to show, with the state’s own documents, that this registration procedure is inadequate to be considered the equivalent of an environmental impact report, regardless of the legislation.

Environmentalists said they also hope to show that the state manipulated data for political reasons by overplaying the Medfly’s potential economic cost to farmers and underplaying health risks to city dwellers.