Poison’s Ban May Derail Discrimination Case

     SAN FRANCISCO (CN) – An attorney asked the Ninth Circuit on Friday to revive his clients’ claims that the Environmental Protection Agency ignored that California’s pesticide regulations disproportionately exposed Latino children to toxic chemicals.
     In the 1999 complaint against the EPA, lead plaintiff Maria Garcia claimed that the California Department of Pesticide Regulation violated Title VI — which prohibits racial discrimination under programs receiving federal assistance — by exposing Latino children to toxic chemicals such as methyl bromide, an agricultural pesticide and soil fumigant.
     Exposure to methyl bromide can cause severe health problems including respiratory and nervous system failure, impairment of the liver and kidneys, seizures and death.
     U.S. District Judge William Orrick found for the EPA in 2014, and the plaintiffs appealed.
     Arguing for Garcia at Friday’s hearing, Brent Newell said that the EPA “has abdicated its statutory responsibilities to enforce Title VI” by making an incomplete investigation into his clients’ complaint.
     Circuit Judge Carlos Bea pointed out that methyl bromide has been phased out as a pesticide in California since the complaint was originally filed.
     “Once the threat of exposure to chemicals was removed, there wouldn’t be any discrimination, right?” Bea said.
     He then asked Newell why a remedy under the California Farm and Agricultural Act would not be adequate. Newell replied that such a remedy would be “inadequate as a matter of law and a matter of application.”
     “Every single case that EPA cites involves a congressionally required remedy,” Newell said. “They haven’t provided a single case where a state law has precluded a remedy.”
     Bea continued to push his earlier point.
     “How were the Latinos being discriminated against if there’s no toxic chemical? We have a saying in Spanish that if you kill the dog you end the rabies,” the judge, who is originally from Cuba, said. “If you get rid of the toxic material, you end the discrimination.”
     Newell said that the EPA should have considered the fumigants that replaced methyl bromide after it was phased out.
     “Judicial review of EPA’s actions would advance the purposes of the Civil Rights Act,” he said. “Judicial review of EPA’s conduct is going to ensure the agency is doing its job.”
     Arguing for the EPA, attorney Thomas Pulham opened by saying that Garcia cannot challenge the adequacy of the agency’s investigation because those enforcement actions are “presumptively unreviewable” under the Administrative Procedure Act.
     Circuit Judge Morgan Christen asked Pulham, hypothetically, when the EPA’s investigation could be considered unreasonable.
     “If they had a hypothetical complaint that encompassed eight different points and the agency follows up on two of them, and then winds up settling or resolving those two but then ignores the other six problems, what would happen then?” Christen asked.
     Pulham replied that the agency’s investigations involve a “balancing” of “complex factors,” which is “within the agency’s expertise.”
     “Those same factors will inform a decision as to which aspects of the complaint to investigate,” he said.
     Christen said that it sounded like Pulham was saying that there wasn’t a point at which the EPA’s investigation would be unreasonable.
     Pulham then pointed out that Garcia’s originally complaint specifically focused on methyl bromide, not other pesticides and fumigants.
     “The complainant said, ‘In order to demonstrate this we’re going to talk about methyl bromide,’ and the whole complaint was about methyl bromide,” he said. “EPA in that circumstance was looking at a complaint that was all about methyl bromide.”
     In his rebuttal, Newell said that although the 1999 complaint focused on methyl bromide, now phased out, “the facts changed and the EPA’s investigation should have known about those facts.”
     “We’re not asking for a decision on the merits,” Newell added. “This is about judicial review.”
     Newell is with the Center on Race, Poverty & the Environment in Oakland, California.
     Pulham is with the Department of Justice.

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