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Appellate ruling puts heated VOC emission debate back at square one

Maybe it’s too early for state farmers to be popping champagne corks, but there’s no doubt that there was a sigh of relief from state officials in August when the California Department of Regulation (DPR) won its appeal involving the federal Clean Air Act.

The Western Plant Health Association, along with several other agricultural commodity groups, was an intervener in the case. “We are pleased with the ruling of the 9th Circuit Court of Appeals that will now allow DPR to move forward with a plan that can be based on science rather than mandates developed by an over-reaching court,” said WPHA President Renee Pinel.

“This ruling allows DPR to adopt a more thoughtful, comprehensive approach to reducing pesticide emissions that contribute to smog,” said DPR’s Director Mary-Ann Warmerdam after the appellate court’s decision. “We believe the environmental and economic progress can be achieved through cooperation, rather than litigation and conflict.”

I used this space last summer to write about a Sacramento district judge’s ruling that found DPR guilty of violating the federal Clean Air Act by failing to enforce a plan for reducing pesticide emissions from fumigants, commonly called volatile organic compounds (VOCs). These VOCs can contribute to poor air quality. As a result of the judge’s mandate, DPR set reduction goals that threatened to take thousands of acres of croplands out of production by eliminating the availability of crop protection products. This would have caused colossal financial damage to California farmers in desperate need of such crop protection tools to help feed their families and the world.

However, on Aug. 20, the 9th U.S. Circuit Court of Appeals overturned the judge’s decision, saying that the lower court lacked the authority to make the finding that the state had failed to adopt enforceable measures to control the pollution, and said any legal challenge had to take the form of a petition to review the U.S. Environmental Protection Agency’s rule-making process.

A number of community organizations headed by El Comite para el Bienestar of Earlimart in Tulare County had sued the state, contending it used the wrong data to calculate the baseline for its emission standards and ignored certain deadlines for airborne pesticide emissions. The ruling dealt an obvious blow to environmental activists.

The appellate court’s decision impacts the district court’s mandate requiring new regulations of VOC emissions from pesticides to be reduced by 20 percent from 1990 levels. The regulations were to apply to the San Joaquin Valley, the Sacramento Valley, Ventura, the Southeast Desert, and South Coast air basins.

Where does the appellate court’s decision leave the hotly debated issue of reducing pesticide usage to control VOC emissions and air pollution?

“Basically, unless the appellate court decision is overturned on appeal – and I find that highly unlikely – the case is over,” said Rob Roy, president and general counsel for the Ventura County Agricultural Association (VCAA). In a phone chat shortly after the appellate court ruling, Roy told me that the court’s decision puts things back to square one. That means that all the parties having an interest in the issue must now return to the negotiation table and work out new regulations.

In Ventura County, Roy said the county stood to lose an estimated 5,000 acres of pristine farmland and open space, 10,000 jobs and roughly $250 million in income and revenue. He said those numbers would rise exponentially if the regulations were to be applied throughout California. About 25 percent of the nation’s strawberries are grown in Ventura County. He also pointed out that Ventura County is in compliance with the Clean Air Act.

While VCAA was not an intervener in the state’s suit in federal court, it is involved in a separate lawsuit against the state (along with a coalition of farmers) over similar disagreements with DPR and its formula to achieve VOC emission reductions.

Asked if the appellate ruling would prompt VCAA to withdraw its lawsuit, Roy had this to say: “We are not going to withdraw our lawsuit at this time until we have a written settlement from DPR rescinding its decision to reduce VOC emissions from pesticide use by 20 percent and deeming this action unnecessary. If they do this, we will withdraw our lawsuit.”

Roy said that the simple act of repealing the VOC regulation in question will help preserve thousands of acres of California farmland, prevent environmentally damaging development, and protect countless jobs in Ventura County and throughout the Central Valley.

“Winning in federal court represents a clear and total vindication for our claim that the VOC regulations were unnecessary and without any merit,” said Roy. “This sets the stage for the start to repeal its now-irrelevant pesticide regulations.”

I contacted DPR to get its reaction to the appellate court ruling, and to get it to elaborate on Warmerdam’s comment that the agency now plans to “adopt a more thoughtful, comprehensive approach to reducing pesticide emissions,” but was told it is simply too early to nail down concrete concepts dealing with what a future VOC regulation would look like. However, in an editorial written by Warmerdam, the DPR director did say that the department will pursue the 20 percent reduction target in Ventura County, but spread out over four years instead of a few short months, giving growers time to adjust their use of fumigants.

In the meantime, you can bet all interested parties are now preparing for “VOC Reduction Plan Phase II – The Sequel,” and hammering out an eventual workable plan that is scientifically sound and fair to all involved throughout the rest of the state. Their collective intentions are best summed up by Rob Roy.

“We look forward to working with DPR to discuss ways agriculture can continue to do its part to improve air quality. But we need to do so in a reasonable, common-sense way that doesn’t obliterate tens of thousands of acres of farmland and result in environmental and economic disaster.”

Amen to that.

TAGS: Legislative
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