Toxic Exposure Claims Won’t Move Forward

SAN FRANCISCO (CN) - Parents alleging a disproportionate exposure of Latino children to toxic pesticides cannot access certain documents, a federal judge ruled.

Maria Garcia, David Garcia and Angelica Guzman led the complaint against the Environmental Protection Agency in June 1999. They claimed the California Department of Pesticide Regulation violated Title VI, which prohibits racial discrimination under programs receiving federal assistance, by exposing them and their children to toxic chemicals such as methyl bromide, an agricultural pesticide and soil fumigant.

Exposure to methyl bromide can cause several severe health problems, including failure of the nervous and respiratory systems, behavioral changes, impairment of the liver and kidneys, seizures, psychosis, and death.

Almost 12 years later, the EPA found in April 2011 that Pesticide Regulation had discriminated against Latino schoolchildren by unduly exposing them to both acute and chronic methyl bromide levels above the safety threshold.

The agency did not publish these results, however, instead keeping them secret while holding private settlement discussions with Pesticide Regulation that did not involve the plaintiffs. The agreement required Pesticide Regulation to comply with Title VI by, among other things, requiring the collection of data from areas with high pesticide use; continued air quality monitoring to mitigate long-term exposure; and holding outreach events to Latino communities.

This led the plaintiffs to argue that the agreement gave them no relief and let Pesticide Regulation continue exposing Latino schoolchildren to high pesticide levels.

The plaintiffs argued the EPA capriciously dismissed their action, Angelita C. v. California Department of Pesticide Regulation, without conducting an investigation to determine whether Latino schoolchildren were disproportionately exposed to other pesticides as well as to methyl bromide.

They also argued that the agency arbitrarily executed a settlement agreement that did nothing to protect them from future exposure, and wrongfully excluded them from the settlement negotiations.

Among other things, they sought a court order vacating the agreement, an order for the EPA to modify its regulations to protect Latinos from pesticide exposure, and an injunction preventing the EPA from denying them access to sought-after documents.

In a motion to dismiss, the EPA claimed that the court cannot review its decision other than to determine whether it overstepped its regulatory authority. It also argued that the court lacked jurisdiction because the plaintiffs could file an action in state court challenging the approval of pesticide permits near schools.

U.S. District Judge William H. Orrick dismissed the suit with prejudice Thursday.

The 33-page ruling notes that this case is not about timeframes or the adequacy of the settlement agreement, but whether the plaintiffs can legally force the EPA to give them the remedy they want.

Orrick found that the court does not have the authority to review the EPA's decision in the matter because Title VI regulations give the agency leeway in determining how to settle cases and enforce its statutes.

Though the law enables people to file a complaint with the EPA, it does not allow them to determine what the EPA investigates and does not require the EPA to include them in settlement discussions. Orrick said the agency may have been "imprudent" in excluding the plaintiffs from these negotiations but did not act improperly.

The EPA also has discretion in enforcing compliance with its regulations because Title VI does not define what compliance with its statues means, the ruling states.

"The law is silent about what constitutes compliance and what sort of settlement is adequate, if one is sought," Orrick wrote. "There is no standard by which the court may decide those questions. ... Therefore, EPA's actions in this case are not subject to judicial review because they fall within the exception of 'agency action [that] is committed to agency discretion by law."

Even if the court could review the matter, the plaintiffs have an alternative remedy: pursuing the case at the state level by challenging Ventura County's approval of permits to use methyl bromide and other pesticides at farms near the Latino children's schools, the ruling states.

The plaintiffs argued that state-law action is inadequate because it does not allow them to "seek declaratory and injunctive relief vacating the settlement," which is available under the Administrative Procedures Act.

Orrick emphasized, however, that an alternative remedy's relief need not be identical to the relief sought under judicial review, "so long as the injury is redressable through other recourse, the APA bars judicial review."

Given the highly regulated nature of pesticide permitting in California, a state law remedy is adequate to address the plaintiffs' concerns, the ruling states.

"By pursuing the available state remedies of challenging the issuance of permits, the plaintiffs would have control over their case and could achieve more direct relief than EPA could offer (if it was so inclined)," Orrick wrote (parentheses in original).

In dismissing the due process claims, Orrick found that the plaintiffs did not demonstrate that they have a property interest.

"The plaintiffs fail to allege what they had or were owed by EPA, but which EPA did not give or wrongfully took from them, other than a right to redress," Orrick wrote. "And that, standing alone, is not a property right."

Orrick concluded: "The court sympathizes with the plaintiffs and others similarly situated if the allegations in the FAC [first amended complaint] are true. However, the court is bound to apply the law as it stands. The court lacks jurisdiction to consider plaintiffs' APA cause of action. Further amendment would be futile, so EPA'S motion to dismiss the first cause of action is granted with prejudice."

The plaintiffs have 20 days from the date of the order to amend their due process claims. If they choose not to, the case will be dismissed in EPA's favor.

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