Latino families battle against pesticides and the government agencies charged with regulating their use.
LOS ANGELES – The fields surrounding Rio Mesa High School in Oxnard, Calif., have yielded bountiful harvests of the strawberries that are the most valuable crop in Ventura County, bringing growers $691 million in revenues in 2012.
They have also produced an epic legal battle that pits Latino families who live near Rio Mesa High against the government agencies charged with regulating the use of pesticides by growers. Crying racial injustice, the families initially filed an administrative complaint against the California Department of Pesticide Regulation in 1999 under Title VI of the Civil Rights Act for allegedly discriminating against non-white children in issuing permits for the use of the highly toxic pesticide methyl bromide.
Now the battle has entered a new phase as three generations of one of those families, led by grandmother Maria Garcia, have challenged the August 2011 agreement between the CDPR and the U.S. Environmental Protection Agency that resolved the original case.
The “informal compliance” agreement “did not provide substantive protections to ensure that Latino children do not continue to suffer disparate adverse effects from exposure to methyl bromide and similar pesticides and fumigants like chloropicrin at their public schools,” Garcia said in a complaint against the EPA that was filed in August.
The suit adds to a rising tide of criticism of the EPA’s performance as the agency responsible for enforcing Title VI, which prohibits recipients of federal funding from using that money in a way that has a discriminatory impact based on race, color or national origin.
In 2009, the 9th U.S. Circuit Court of Appeals found the EPA had shown a “consistent pattern of delay” in addressing allegations of Title VI violations. More recently, a consulting firm hired to assess the agency suggested its Office of Civil Rights had a record of performance somewhat comparable to a bureaucratic black hole. Of the 247 Title VI complaints it has received, Deloitte Consulting reported, only 6 percent were processed within the 20-day time limit and the backlog of cases stretches back to 2001.
“The EPA is essentially denying our clients a very important fundamental right that was won in the civil rights struggle,” said Madeline Stano, an attorney with the Center on Race, Poverty and the Environment who is representing Garcia.
Garcia is seeking a court order declaring the EPA arbitrarily and capriciously settled the original case and an injunction vacating the settlement. But she could be facing another long struggle. The EPA has argued in a motion to dismiss the case that courts cannot review its enforcement of Title VI and that the process of appealing pesticide permits to local agricultural officials and the CDPR provides an adequate remedy.
Bureaucratic wheels turn slowly
At the time the original case — known as Angelita C. v. California Department of Pesticide Regulation — was filed, Garcia’s son David was 14 years old and a student at Rio Mesa. The school had an enrollment of 2,169 students, 75 percent of whom were non-white. And at least 67,492 pounds of methyl bromide were applied annually within a 1.5-mile radius of the school. The pesticide is toxic primarily to the central nervous system but also damages the lungs, kidneys, eyes and skin.
Fourteen years later, David Garcia is an adult with two children of his own who will attend the same Oxnard schools he did. For the 2012-2013 school year, Rio Mesa High School had an enrollment of 2,061 students, 69 percent of whom were Latino, and 81 percent of whom were non-white. And large quantities of pesticides are still being sprayed on neighboring fields. The school is within the top 10 percent of zip codes in California with the highest environmental pollution, with pesticides contributing 99.9 percent of the pollutants.
“[T]he overall mix of soil fumigants in the Rio Mesa High School area has changed over time, but overall use has not declined substantially,” Maria Garcia said in her suit.
California is unique among states in that it requires users of certain pesticides to get a permit from a county agricultural commissioner. An application for a permit must, among other things, include a map or description of the surrounding area showing any locations that could be harmed by pesticides, including schools. Permits are typically issued for a year, but a commissioner may deny a permit if “he or she concludes that use of the pesticide may harm people or the environment.” A denial can be appealed to the CDPR.
In June 1999, Garcia and five other residents of Ventura, Monterey and Santa Cruz counties filed the administrative complaint with the EPA, alleging CDPR had failed in its permitting process “to consider and account for the extent to which high methyl bromide use occurs near residential areas and schools” and was responsible for a “clear discriminatory pattern” of methyl bromide application.
“Non-white children bear the disproportionate share of the heavy use of methyl bromide in proximity to California public schools,” the complaint said, noting that at the 21 schools — including Rio Mesa — closest to the most intensive use of the pesticide, 82 percent of students were non-white.
The complaining residents looked forward to “an active, collaborative investigation by EPA,” but the bureaucratic wheels turned slowly. It took the EPA more than two years to formally accept the complaint and another nine-and-a-half years to complete the investigation.
“[T]here is sufficient evidence to make a preliminary finding of a prima facie violation of Title VI as a result of the adverse disparate impact upon Latino schoolchildren in California from the application of methyl bromide between 1995 and 2001,” the Office of Civil Rights concluded in an April 2011 letter to the CDPR. According to the investigation report, Rio Mesa High exceeded all 12 exposure scenarios by which EPA measured excessive pesticide levels beyond federally established health-based standards.
The finding of racial discrimination was the first in the history of EPA enforcement of Title VI. But it wasn’t until August 2012 that the EPA told the Angelita C. complainants about it — and that in August 2011, it had entered into the voluntary compliance agreement with the CDPR and dismissed the complaint.
“The fact that EPA excluded complainants from settlement discussions and kept those proceedings and the preliminary finding secret demonstrates EPA’s arbitrary and capricious behavior,” Garcia said in her suit.
Power of Big Ag
The settlement only required CDPR, among other things, to ask California air-quality officials to continue methyl bromide monitoring in Oxnard, which had been set to expire during 2011, for an additional two years through 2013 and to continue CDPR’s pesticide exposure education and outreach efforts to “the Latino community.”
The Garcias were disappointed, to say the least. The EPA “had a perfect opportunity to make a stand” for environmental justice, attorney Stano told MintPress in an interview. “But the settlement does nothing … to change what’s happening at Rio Mesa High School for David’s children.”
In addition, EPA investigators refused to consider the environmental impacts of other pesticides, such as chloropicrin, replacing methyl bromide or harm inflicted after 2001.
“They just chose a random snapshot of time,” Stano said. “They didn’t appreciate the scope of the discrimination. EPA wanted to limit it to an isolated period of time so it wouldn’t have to get into the larger problem.”
Stano believes the EPA’s enforcement efforts reflect the political clout of the agricultural industry.
“Big Ag is a very powerful entity,” she observed. In California, growers can still treat strawberries with methyl bromide under a “critical use exemption,” which must be reviewed annually. And in Ventura County, strawberries are woven into the cultural fabric, with Oxnard —the “Strawberry Capital of the World” — staging the annual California Strawberry Festival.
In its recent report, Deloitte Consulting painted a bleak picture of OCR’s operations, saying the division has deficiencies in “leadership and workforce competencies” and “has drifted in focus and struggled to perform fundamental tasks.”
As far as Title VI enforcement, the report said, half of the complaints have taken one year or more to be accepted or dismissed. Staff and management interviews “indicated a core challenge with Title VI is the complexity of each case.”
Garcia’s new suit would, in effect, invalidate the work the EPA did to resolve the Angelita C. complaint.
“Because of EPA’s arbitrary and capricious actions … multiple generations of Latino schoolchildren in California have suffered, and continue to suffer harmful disparate exposures to toxic fumigants, including methyl bromide and chloropicrin,” the suit said.
As an initial matter, Garcia must show a federal judge in San Francisco that he has jurisdiction over her claims. The EPA’s proposal that she seek relief through the state administrative appeal process is untenable, she argues, because she and “any other parent wishing to protect their child from harmful and discriminatory pesticide exposure must challenge any and all permit applications every year their children attend school.”
Stano contends it is simply time for the EPA to fulfil its environmental justice mandate.
“If you have a right without a remedy, it’s no right at all,” she said.