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In Pesticide Action Network North America v. California Department of Pesticide Regulation, 2017 Cal. App. LEXIS 803, the First Appellate District reversed the trial court and set aside the Department of Pesticide Regulation’s (“DPR”) approval of amended labels for two pesticides, Dinotefuran 20SG and Venom Insecticide.  The purpose of the amended labels was to allow both pesticides to be used on additional crops, such as fruiting vegetables, onions, peaches, and nectarines.

In 2006, a phenomenon called “colony collapse disorder” began, where many honey bees disappeared from managed hives in the United States. According to the 2012 Report on the National Stakeholders Conference on Honey Bee Health (“NSC Report”), approximately 28 to 33 percent of honeybee colonies had failed each year since 2006, while a normal loss rate was ten percent.  The NSC Report noted that colony collapse disorder was being caused by several factors, including pesticides.  In February 2009, the Department initiated a reevaluation of the two pesticides at issue in this case along with 280 other pesticide products.  In September 2014, the Department was granted by the California Legislature until July 1, 2018 to complete a thorough reevaluation of the pesticides on pollinator health.

In January 2014, before the Department completed the reevaluation, it released public reports concerning its proposed decisions to approve amended labels for Dinotefuran 20SG and Venom Insecticide. Subsequently, the Department approved the label amendments.  The plaintiff sued to set aside the Department’s approval, contending that the Department violated CEQA in approving the label amendments.  The trial court ruled in favor of the Department.

On appeal, the court rejected the Department’s argument that the environmental review was exempt from CEQA because it was conducted pursuant to the Department’s pesticide registration program certified under Public Resources Code (“PRC”) section 21080.5, which allowed the Department’s environmental documents to serve as the “functional equivalent” of CEQA documents. Based on the plain language of PRC section 21080.5 and case law, the court concluded that the Department’s registration program was subject to the broad policy goals and substantive requirements of CEQA while exempt from the CEQA procedural requirements set forth in CEQA Chapters 3 and 4 and PRC section 21167.

Next, the court identified the broad policy goals and substantive requirements of CEQA applicable to certified regulatory programs and found that the Department did not comply with these requirements. First, citing PRC section 21001(g), the court held that the Department must consider alternatives to registering the proposed new uses for the two pesticides.  Accordingly, the court found that the reports “glaringly” failed to address any feasible alternative.  Second, finding that the Department’s environmental documents must provide an adequate baseline, given the CEQA’s goal of informing the public of the potential impacts of a proposal, the court concluded that the Department failed to provide adequate baseline information.  Third, relying on case law, the court also found that the Department must consider the project’s cumulative impacts, but failed to so.  Finally, finding that the Department was required to recirculate any new significant information about the project, the court held that because the Department’s initial public reports were “so inadequate and conclusory … public comment on the draft was effectively meaningless” its effort to explain its decision in response to comments required recirculation.

Key Point:

While exempt from the CEQA procedural requirements set forth in CEQA Chapters 3 and 4 and PRC section 21167, environmental documents prepared under a certified regulatory program pursuant to PRC section 21080.5 must comply with the policy goals and substantive requirements of CEQA.