Apple Moth Lawsuit Opening Brief: State’s Analysis Gives License to Spray Pesticides Indefinitely without Studying Health Effects

Attorneys for cities and citizen groups say flawed state environmental analysis should start over

SACRAMENTO (Jan. 3, 2012) — Attorneys for a coalition of cities and health, environmental and mothers’ groups have filed opening arguments in a lawsuit challenging the California Department of Food and Agriculture’s (CDFA) statewide light brown apple moth eradication program.

The coalition’s opening brief, filed in late December, charges that CDFA violated state law by:

  1. Misrepresenting or failing to evaluate health effects of the program,
  2. Making a last-minute change in the program that would allow spraying to go on indefinitely, and
  3. Pursuing an unnecessary program because there remains no documented evidence of apple moth damage in California although the moth has been in the state for many years.

The lawsuit challenges the environmental impact report (EIR) that CDFA belatedly prepared under court order. CDFA was forced to prepare the EIR after it repeatedly sprayed residents of densely populated Santa Cruz and Monterey counties from low-flying airplanes with a largely untested pesticide for the apple moth in 2007, following which hundreds of residents reported illness.

According to documents highlighted in the plaintiffs’ argument, scientists hired to prepare the EIR warned CDFA against trying to cover up health effects of apple moth pesticides, manipulated calculations to minimize health risks, and tried — without success — to obtain evidence of apple moth damage.

The EIR consultants also struggled to avoid contradicting two in-house “reports” prepared by CDFA staff that exaggerated the amounts of pesticide the agency claimed private homeowners would use to combat the moth if CDFA did not carry out its apple moth spray program. The CDFA reports were used to make CDFA’s program of statewide pesticide treatments appear less dangerous.

CDFA finally completed the apple moth EIR in 2010, approving it with last-minute changes in the program, including: (1) eliminating a pesticide from the program because CDFA had inaccurately calculated the cancer risk as less than the actual risk, and (2) eliminating another pesticide from use at schools because CDFA had failed to realize it was on the list of pesticides that the state Department of Pesticide Regulation prohibits from use around children.

The most significant last-minute change was in the apple moth program objective, from “eradicating” to merely “controlling” the moth. Bizarrely, and despite this change, the EIR dismisses non-toxic control methods because those approaches “control” rather than “eradicate” the moth.

According to attorneys for the coalition, now that the program’s goal is to control rather than eradicate the apple moth, the state must start over and, at a minimum, consider non-toxic control methods and redo the risk assessments to account for the control program’s indefinite duration.

“CDFA presented one program to the public but approved a significantly different program after the public review period had ended. By engaging in such a classic bait and switch, CDFA violated the California Environmental Quality Act’s fundamental public comment policies and abused its discretion,” said coalition attorney Summer Wynn of Cooley LLP.

“In addition to disregarding CEQA’s public disclosure and review requirements, CDFA did everything possible to avoid looking at non-toxic control while instead manipulating the facts to misrepresent their toxic program as safer than any alternative,” said Tom Kelly, Board Member of the California Environmental Health Initiative (formerly Stop the Spray East Bay).

“California law requires that citizens be fully informed about potential risks that projects like aerial spraying pose to public health and our environment,” said San Francisco City Attorney Dennis Herrera. “Yet the evidence is clear that the state agency pushing the controversial light brown apple moth program is falling short of its legal mandate. San Francisco continues to have grave concerns about the likely adverse consequences of this controversial program, and we’re grateful to be a part of a coalition that includes local governments and environmental and public health advocates to make sure our concerns are fully addressed.”

“We are deeply concerned about the state’s calculated efforts to minimize health risks associated with the apple moth pesticides, which were and would continue to be used repeatedly in populated areas, according to documents uncovered by our attorneys,” stated Debbie Friedman, Co-Director, MOMS Advocating Sustainability (formerly, Mothers of Marin Against the Spray). “This, combined with last-minute switches to the apple moth program goal and failure to provide evidence of damage from the apple moth are just a few of the reasons we oppose continuation of this misguided and expensive program,” she continued.

Although the apple moth lawsuit was filed in 2010, it will not be heard by the court until 2012 because of repeated delays by CDFA, including filing the response to the lawsuit more than a month after the deadline and requesting multiple extensions before approving the official record of documents for the case.

The coalition of groups filing suit includes: Our Children’s Earth Foundation, Mothers of Marin Against the Spray (MOMAS), Stop the Spray East Bay, Californians for Pesticide Reform, Stop the Spray San Francisco, Pesticide Watch, Pesticide Action Network, the Center for Environmental Health, Citizens for East Shore Parks, and the cities of Berkeley, Albany, and Richmond. The group’s pro bono attorneys are Cooley LLP, Earthjustice, and the City and County of San Francisco.

Despite the legal challenge against the program and no reported damage from the moths, CDFA has continued for the past 2 years to hang pesticide-infused twist ties in areas where apple moths are detected. The apple moth program has cost more than $100 million to date.

The full text of the opening brief is available at:, and also on the San Francisco City Attorney’s Web site at

Related Documents:

PDF iconPDF of the LBAM opening brief presskit (Jan. 3, 2012)