Calif. Dinged for Plan|to Fight Apple Moth

     SACRAMENTO, Calif. (CN) – California must prepare a new environmental study to go from trying to eradicate the light brown apple moth to controlling it indefinitely, a state appeals court ruled.
     Named for its color and tendency to feed on apple fruit, leaves and shoots, the light brown apple moth is an invasive species native to Australia that has spread to several other places through the nursery trade including the British Isles, Hawaii, and New Zealand.
     Males grow between 6 to 10 millimeters long, while females can reach 7 to 13 millimeters. Females make nests by rolling up a plant’s leaves and can lay anywhere between 3 to 150 eggs at a time.
     The larvae primarily feed on the leaves, damaging the surface layers and affecting the plant’s growth patterns. Larvae also tunnel into developing fruits and can render a crop commercially unviable.
     After its presence was confirmed in California in 2007, the state Department of Food and Agriculture and the U.S. Department of Agriculture instituted quarantines in 13 counties but were unable to curb the moth’s spread.
     Declaring the light brown apple moth a threat to the state’s agriculture industry and the nation’s food supply, the state department circulated a draft environmental impact report for a program to eradicate it.
     Among other things, the report identified several chemical and nonchemical tools to achieve eradication including releasing sterile moths into the environment, interfering with the moths’ mating pheromones, introducing stingless wasps to prey on moth eggs, and treating plants with approved insecticides. It also mentioned a “control” strategy, but did not further evaluate it since eradication was still considered feasible at the time.
     A few weeks after the final report was published, the USDA issued a statement saying that eradication was no longer considered feasible and that a strategy of control and suppression was recommended.
     Though the draft environmental report insisted that eradication is “fundamentally different” from control, the state department’s secretary approved a seven-year control program when certifying the report for the seven-year eradication program.
     Citing the possibility of a 20 percent crop yield loss without a containment program, the department rejected a no-program alternative and concluded that, with proper mitigation measures – such as restriction of pesticides during spawning seasons – the program would have no significant unavoidable environmental impacts and declined to do further environmental review.
     Several environmental groups challenged that conclusion in separate suits that were consolidated on appeal. They claimed the department’s 11th-hour change to a control program violated the California Environmental Quality Act by rendering the environmental report for the eradication program deficient, because it lacked an accurate project description, did not discuss a range of alternatives, and relied on a seven-year review period though the control program will last indefinitely.
     The trial court denied both groups’ petitions for writ of administrative mandamus, a decision reversed Monday by the Third Appellate District.
     The three-judge panel found that the environmental impact report was deficient before the department’s last-minute changes because it did not analyze pest control as a reasonable alternative to eradication. Nor did it discuss cumulative impacts of maintaining the control program longer than seven years, according to the ruling.
     Refusing to evaluate the merits of a control program because it would not achieve the goal of eradication confuses the CEQA definition of project objectives and purposes, the panel found.
     Since the true objective of the program was to protect California’s native plants and crops from the light brown apple moth, defining the program’s objective as eradication of the moth was “an improper ‘artificially narrow’ definition,” the panel found.
     This is made more evident given that the revised program listed its objectives as protecting the state’s food supply and natural resources from the light brown apple moth rather than “controlling” the moth, according to the ruling.
     Control should have been studied as an alternative to eradication because the department knew eradication could become untenable at any time, the court ruled.
     “It is possible a control program may not be a viable alternative on the ground its unending nature would be more harmful to the environment than an eradication program. On the other hand, it could be that an eradication program would require more intensive application of tools than a control program, leveling out the environmental impacts. We do not know, because the California Department of Food and Agriculture skirted the issue,” Judge Harry E. Hull Jr. wrote for the panel.
     “Had the department evaluated a ‘control’ program as an alternative to an ‘eradication’ program, the department may have rejected a control program on the ground the unending nature of it would be more harmful to the environment. At least that is the inference to be drawn from the environmental impact report’s drumbeat distinguishing the two. But that just goes to show the prejudice of the department’s last-minute shift from eradication to an unstudied control program.”
     The judges rejected the department’s argument that approving a project with a narrower scope than the initial description is not improper, noting that there is no way to tell whether control will be narrower or broader than eradication because control was not studied as an alternative.
     In fact, evidence in record seems to indicate that control will be more harmful than eradication because it could go on “forever,” Hull wrote.
     The state found more success on its treatment of the no-program alternative and analysis of several proposed methods to kill the moth, as the panel found the groups could not show reversible error or support contentions of flawed analysis with adequate evidence.
     However, the panel declined to “foreclose the possibility that updated evidence may alter the analysis in the event the department proceeds with further environmental review in order to continue its control program,” Hull wrote.
     The court declined to address the environmental groups’ contentions that the environmental report did not adequately analyze the cumulative impacts of control versus eradication, because the finding of reversible error in the report’s failure to analyze control as an alternative necessitates the creation of a new cumulative impacts discussion in light of the control program’s longer duration.
     The panel remanded the cases back to the superior court to grant the groups’ writ petitions.
     Presiding Judge Vance Raye and Judge Cole Blease concurred.
     Stephan Volker of Oakland, Erin Tobin with EarthJustice and Kathleen Goodhart with Cooley LLP’s San Francisco office represented the North Coast Rivers Alliance and its co-plaintiffs.
     California Attorney General Kamala Harris represented the state.
     Counsel for the parties did not immediately return emailed comment requests.

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