JUANA VASQUEZ ET AL. v. DEPARTMENT OF PESTICIDE REGULATION; DOW AGROSCIENCES LLC, Intervener and Appellant.
A154922
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Filed 9/8/21
CERTIFIED FOR PUBLICATION
JUANA VASQUEZ ET AL., Plaintiffs and Respondents, v. DEPARTMENT OF PESTICIDE REGULATION, Defendant and Respondent; DOW AGROSCIENCES LLC, Intervener and Appellant.
A154922
(Alameda County Super. Ct. No. RG17847563)
Juana Vasquez, Californians for Pesticide Reform, and Pesticide Action Network North America (collectively, plaintiffs) filed a petition for a writ of mandate and complaint against the Department, claiming that the township cap program (1) is an underground regulation in violation of the Administrative Procedure Act (APA) (
On appeal, Dow contends that the trial court erred by granting summary judgment in favor of plaintiffs and instead should have granted the Department‘s cross-motion for summary judgment, which Dow joined.2 We agree with plaintiffs that the court correctly determined that the township cap program is an underground regulation. We also agree with the parties that in light of this holding, we need not address whether sections
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Regulatory Scheme
Division 7, chapter 2 of the Food and Agriculture Code and its implementing regulations in title 3, division 6 of the California Code of
Upon registering a pesticide, the Department may place “[a]ppropriate restrictions . . . upon its use including, but not limited to, limitations on quantity, area, and manner of application.” (
The Department also has the option to designate a pesticide as a restricted material. (
When deciding whether to issue a restricted-material permit, a commissioner must “determine if a substantial adverse environmental impact may result from the use of such pesticide.” (Regs., § 6432, subd. (a).) If such a risk exists, but there is a “feasible mitigation measure” that would “substantially reduce the adverse impact,” the permit must be “conditioned on the utilization of the mitigation measure.” (Ibid.) In making these determinations, a commissioner must rely on his or her knowledge of “local conditions.” (Ibid.)
After an operator procures a restricted-material permit from a commissioner, the operator must obtain a written recommendation from a licensed
Each commissioner is “responsible for local administration” of efforts to enforce pest control requirements, but the Department is “responsible for overall statewide enforcement and shall issue instructions and make recommendations to the commissioner. Such instructions and recommendations shall govern the procedure to be followed by the commissioner in the discharge of his [or her] duties.” (
B. 1,3-D‘s Use in California
1,3-D is the active ingredient in soil fumigant products that are generally injected into the soil before planting. The pesticide is used to improve growing conditions for a variety of crops in California, including nuts, grapes, and strawberries. It is designated as a restricted material. (Regs., § 6400, subd. (e).) When it is applied, 1,3-D volatizes into the air, and people can be exposed to it through inhalation.
1,3-D has been used in California agriculture for several decades. Dow is the only producer of 1,3-D for use in the state, although several soil-fumigation products containing the chemical are available.
The regulatory controls governing 1,3-D‘s use in California have arisen in the context of a technical bureaucratic environment, which we take some time to explain. In 1990, after 1,3-D was detected in the air at “levels of concern,” the Department prohibited its use. Five years later, 1,3-D was reintroduced as another soil fumigant, methyl bromide, was phased out. Reintroducing 1,3-D was conditioned on “strict control measures, including amended pesticide labels, reduced application rates, buffer zones, lengthened reentry intervals, and Dow control of distribution and use, in close consultation with the . . . commissioners.”
“Since 1999, the key mechanism that has been used to restrict use” of 1,3-D is the township cap program, which is a condition of registration of Dow‘s 1,3-D products. As the registrant, Dow is “responsible for tracking, reporting, and ensuring township caps are observed.” The condition limits the amount of 1,3-D that can be applied each year in a given 36-square-mile region, or “township.” Originally, the township cap was 90,250 adjusted
The revisions to the township cap program that are at issue were developed over several months beginning in 2015. In August of that year, after performing an updated health risk assessment of 1,3-D, the Department submitted a draft “Risk Characterization Document” to OEHHA for review and comments. The two state entities disagreed on whether the risk assessment should be based on a “systemic” or “portal of entry” mode of action for cancer development. The former, which OEHHA advocated, assumes that a chemical will interact with the body systemically, and it results in a lower target air concentration of 1,3-D. The latter, which the Department used, assumes a chemical will interact with the body at the point of entry, and it results in a higher target air concentration of the chemical.
A few months later, in December, the Department issued its final risk characterization document, entitled “1,3-Dichloropropene Risk Characterization Document, Inhalation Exposure to Workers, Occupational and Residential Bystanders and the General Public” (final risk characterization document). The document, which is almost 300 pages long, addressed “risks arising from inhalation exposure” to both workers and occupational and residential bystanders, and it contained calculations for both systemic and portal of entry modes of action.
In August 2016, the Department provided OEHHA with a draft Risk Management Directive. The draft proposed to revise the target air concentration of 1,3-D to .56 ppb—a substantial increase from the previous figure of .14 ppb—and, based on the higher concentration, to increase the annual township cap to 136,000 adjusted total pounds of 1,3-D. OEHHA responded that it did “not believe that the proposed cap can assure adequate health protection for all residents of a given township,” reiterating its objection to the portal of entry mode of action.
In October 2016, the Department issued an internal memorandum entitled “Risk Management Directive and Mitigation Guidance for Cancer Risk from 1,3-Dichloropropene (1,3-D)” (final risk management directive). In it, the Department confirmed its determination “that it is appropriate to use a portal of entry mechanism as opposed to the [systemic] mechanism that was selected previously.” The Department also confirmed its decision “to set the
The final risk management directive also addressed the measures the Department would take to “achiev[e] the . . . regulatory target concentration.” The document stated that, “[e]ffective January 1, 2017, [Department] staff will make the following revisions to the township cap program“: (1) changing the township cap to 136,000 adjusted total pounds per year; (2) eliminating banking of unused 1,3-D; and (3) prohibiting use of 1,3-D in the month of December due to seasonal conditions. In addition, the Department stated that if ongoing “air monitoring shows one-year average air concentrations that are between 0.27 and 0.56 ppb,” it would “consider more stringent mitigation measures.”
Two months later, in December 2016, the Department entered a memorandum of understanding (MOU) with Dow that “establishe[d] a new Updated Management Program for the distribution and application of [1,3-D].” The MOU provided that, “effective in January 2017,” the updated program would “be implemented through the permit system for restricted materials operated by the [commissioner] of each county where 1,3-D is used.” Specifically, after “issuance of a restricted materials permit by the [local commissioner],” 1,3-D products could be applied “only upon the recommendation of a licensed pest control advisor,” which Dow had to approve. Dow agreed to take particular steps to ensure “the township caps are not exceeded,” consisting primarily of following various directives on how to evaluate recommendations of pest control advisors that were submitted to it. For example, Dow agreed not to approve a recommendation unless the company first “ensure[d] . . . that the amount of 1,3-D to be applied pursuant to the recommendation will not cause the township limit of 136,000 adjusted pounds per year to be exceeded.” In addition, the MOU provided that if another party were to “introduce[] a 1,3-D soil fumigant product in California that is produced from 1,3-D not manufactured by [Dow], . . . [the Department would] require that [third party] to discharge the same tasks and duties for its product that are to be discharged by [Dow] under [the MOU].”
The MOU also addressed “enforcement” of the revised township cap program. Dow and the Department “acknowledge[d] that provisions of the [MOU] may be construed as rules, regulations, limitations[,] or conditions for permitting within the meaning of . . .
On January 10, 2017, the Department sent a letter to the commissioners enclosing revised “Recommended Permit Conditions” for 1,3-D. The letter explained that, effective January 1, the Department had “updated” the township cap program based on the final risk management directive. According to the letter, the “changes include[d]” (1) establishing a single cap of 136,000 adjusted pounds and eliminating banking; (2) prohibiting use of 1,3-D in December; and (3) requiring notices of intent submitted by operators to a commissioner to “document the amount of 1,3-D left available in a township.”
The revised “Recommended Permit Conditions” were not set forth in a freestanding document. Instead, they were in Appendix J to the third volume of the Department‘s “Pesticide Use Enforcement Program Standards Compendium,” which addresses several other pesticides designated as restricted materials. Revised Appendix J stated that the “recommended permit conditions . . . should be used in addition to” product labeling and the applicable statutory and regulatory provisions. It also directed that “[w]hen requirements differ the most stringent requirements should be followed. [Commissioners] can use more restrictive conditions based on the local use conditions.” (Boldface omitted.)
The second section of revised Appendix J, entitled “Conditions for All Application Methods,” identified particular conditions on the use of 1,3-D. Some of these conditions addressed the notice of intent an operator must submit to a commissioner before a particular application of 1,3-D. Specifically, a commissioner could not accept a notice of intent unless the operator provided a Dow-approved recommendation of a pest control advisor. The notice of intent itself had to contain information “[i]n addition to [that] required in [Regulations] section 6434,” including the “[s]tarting [adjusted total pounds] balance available in the township prior to the proposed application.” And the notice of intent had to “be denied if the proposed application
C. Procedural History
Shortly after the January 2017 letter was sent to the commissioners, plaintiffs initiated this action by filing a petition for a writ of mandate and complaint against the Department. The pleading alleged that plaintiff Vasquez, a strawberry harvester, worked and lived near fields treated with 1,3-D. The cause of action at issue alleged that the Department violated the APA “by adopting underground regulations regarding 1,3-D” without formal rulemaking. Plaintiffs sought a declaration that the existing regulations were invalid and a writ of mandate compelling the Department to promulgate lawful regulations in their stead. The Department answered the petition and complaint, and Dow was permitted to intervene as a defendant in the action.
Subsequently, the Department, joined by Dow, and plaintiffs filed cross-motions for summary judgment. The Department contended that plaintiffs’ claim failed “because the challenged actions—the Department‘s internal guidance document dated October 6, 2016[,] and referred to as the ‘Risk Management Directive,’ and the Department‘s January 10, 2017 letter to County Agricultural Commissioners with attached revised recommended permit conditions—are not regulations subject to [APA] requirements . . . , as a matter of law.” Plaintiffs, on the other hand, sought summary judgment on the basis there were no triable issues of material fact as to their claim that the Department “adopted its township cap program as an underground regulation without complying with the [APA].”
In February 2018, the trial court issued a “preliminary tentative decision” concluding that plaintiffs could not prove their claim. The preliminary decision was based on the court‘s conclusions that (1) “[t]he township cap program was adopted and modified as part of the registration and re-registration of 1,3-D,” and “the issuance and renewal of certificates of registration is outside the scope of the APA“; and (2) “[t]he township cap program was implemented as a ‘recommendation’ to [the commissioners]” such that it was not a generally applicable rule requiring rulemaking under the APA. The court gave the parties an opportunity to submit supplemental briefs before it issued a final ruling, however, because it had considered aspects of the regulatory structure the parties had not addressed.
After the parties submitted supplemental briefing, the trial court reversed course and issued a final order granting plaintiffs’ motion for summary judgment and denying that of the Department and Dow. In May 2018, the
II. DISCUSSION
Dow, joined by the Department, claims that the township cap program is not a regulation subject to the APA‘s rulemaking requirements. We conclude that the trial court correctly held that the program is an underground regulation.
A. General Legal Standards
“The APA subjects proposed agency regulations to certain procedural requirements as a condition to their becoming effective,” including public notice and opportunity for comment. (Morning Star Co. v. State Bd. of Equalization (2006) 38 Cal.4th 324, 332–333 (Morning Star); Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 568 (Tidewater).) Thus, “any regulation not properly adopted under the APA is considered invalid.” (Reilly v. Superior Court (2013) 57 Cal.4th 641, 649.) It is undisputed that the Department must comply with the APA in adopting regulations. (See
Under the APA, “[n]o state agency shall issue, utilize, enforce, or attempt to enforce any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, which is a regulation as defined in [
A motion for summary judgment is properly granted if “there is no triable issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” (
B. The Agency Rule at Issue
We begin by addressing the contours of the pertinent agency rule. The trial court determined that the rule at issue was the revised township cap program, whose “two primary components” are “(1) the ‘annual limit’ and (2) the ‘prohibition in December.‘” The court also concluded that the program, while set out in the October 2016 final risk management directive, the MOU, the January 2017 letter to the commissioners, and/or revised Appendix J, was “implemented . . . as a condition of the registration of 1,3-D.”
Certain aspects of this ruling are not at issue. First, it is undisputed that the township cap program amounts to a condition of 1,3-D‘s continued registration. Second, plaintiffs do not challenge the trial court‘s determination that
On appeal, Dow and the Department fail to grapple with this framing of the relevant rule. Both parties claim that plaintiffs in fact “challenge[d] two discrete [Department] documents as supposed ‘underground regulations,‘” the final risk management directive and revised Appendix J.
According to Dow and the Department, the revisions to the township cap program were implemented and are enforceable solely through the MOU, but since plaintiffs did not challenge that document in the petition it is “outside the scope of this litigation.” In its final order, however, the trial court explicitly rejected these arguments, and neither Dow nor the Department attempts to explain why the court thereby erred.
In our view, the trial court correctly refused to take such a constrained view of plaintiffs’ claims. A regulation subject to the APA may exist even if the agency never “promulgate[s] a written policy” setting forth the rule at all. (Morning Star, supra, 38 Cal.4th at p. 336.) In Morning Star, for example, although the agency‘s interpretation of a governing statute was never set forth in a particular document, “the record establishe[d] that [the agency‘s interpretation had] been as fixed and far reaching as would be the case if a written policy had been issued.” (Ibid.) The Supreme Court rejected the notion that the lack of a written policy was significant, stating that it “decline[d] to endorse an approach that would allow an agency to avoid APA requirements simply by driving its regulations further underground.” (Ibid.) In other words, the form of an agency rule is not necessarily determinative of whether it qualifies as a regulation. Rather, the focus is on whether, as actually applied, it meets the Tidewater requirements. Thus, even if we assumed that the MOU is the only document that “implemented” or made “enforceable” the township cap program, that does not mean the MOU itself is the rule at issue. Rather, it is merely one of the documents that memorializes the rule.
Consistent with this view, the petition challenged “revised permit conditions for 1,3-D effective January 1, 2017,” that were “[publicly] released” on January 10 and “had been announced in” the final risk management directive. Although the petition elsewhere characterized the risk management directive and revised Appendix J as “underground regulations” themselves, plaintiffs’ motion for summary judgment made clear their position that “the actions of
In short, we agree with plaintiffs and the trial court that the agency rule at issue is the revised township cap program, and particularly the annual cap on the amount of 1,3-D that may be applied in a township. Therefore, we turn to address whether that program—not the final risk management directive, revised Appendix J, or the MOU individually—qualifies as a regulation under Tidewater.
C. The First Tidewater Requirement
As we have said, the first characteristic of a regulation subject to the APA is that “the agency must intend its rule to apply generally, rather than in a specific case.” (Tidewater, supra, 14 Cal.4th at p. 571.) The trial court concluded that the township cap program applies generally under Tidewater because it “limits whether any potential user of a 1,3-D product can use it in a township given the aggregate use of the product to date.” The court also noted that “[t]he MOU states that if any other producer or registrant introduces a 1,3-D product then [the Department] must require that new producer or registrant to discharge the same tasks and duties that [Dow] has under the MOU,” and revised Appendix J “states that it applies generally to ‘pesticide products containing the active ingredient . . . [1,3-D],‘” not just Dow‘s products. In other words, the annual limit affects not just Dow but all California users of 1,3-D, as well as any future other registrants of a product containing the chemical.7
Initially, we consider and reject Dow‘s suggestion that conditions of registration categorically are not subject to rulemaking. Dow points to a provision that exempts from APA rulemaking procedures any “regulation that is directed to a specifically named person or to a group of persons and does not apply generally throughout the state” (
In suggesting that conditions of registration generally do not qualify as regulations, Dow also states that the fact “the relevant Food & Agricultural Code sections governing [the Department‘s] authority to place conditions on a pesticide regulation do not require APA rulemaking procedures” is “‘strong evidence that the Legislature did not intend to require’ APA rulemaking for those discrete actions.” This argument “lack[s] persuasive force,” however, “because the APA does not have to be referenced in a statute . . . before it applies: It applies generally to any regulation meeting the APA definition, absent an exemption.” (Savient Pharmaceuticals, Inc. v. Department of Health Services (2007) 146 Cal.App.4th 1457, 1469; Morning Star, supra, 38 Cal.4th at p. 335.) Moreover, Dow again fails to acknowledge that the trial court ruled against it on the issue, by specifically refusing to find “an implied exception” of “the pesticide registration process” from the APA‘s rulemaking requirements. Any claim the court thereby erred is thus forfeited as well.
Relying on Patterson, Dow and the Department also urge that a condition of a specific party‘s registration of a specific pesticide is not generally applicable under Tidewater. The Patterson appellants challenged a fine imposed on a company “for failing to follow the label directions when it made an aerial application of pesticides.” (Patterson, supra, 161 Cal.App.4th at p. 417.) The fine was imposed under section 12973, “which provides: ‘The use of any pesticide shall not conflict with labeling registered pursuant to this chapter which is delivered with the pesticide or with any additional limitations applicable to the conditions of any permit issued by the director or commissioner.‘” (Patterson, at p. 417.) The Fifth District Court of Appeal rejected the appellants’ claim that the labeling “was an ‘underground regulation’ pursuant to which it was improper to impose a penalty.” (Id. at p. 429.) The court reasoned that the fine was in fact imposed for violating section 12973, and the labeling itself “[was] not intended to apply generally rather than to a specific pesticide; it [was] not approved or registered to implement, interpret[,] or make specific the law enforced by the agency. Rather, the labeling [was] intended to accurately inform the user of the purposes for
We decline to read Patterson‘s statement that pesticide labeling is “not intended to apply generally rather than to a specific pesticide” (Patterson, supra, 161 Cal.App.4th at p. 429) to mean that any agency rule addressing only a particular pesticide can never qualify as a regulation. The line between rules that “apply generally, rather than in a specific case” (Tidewater, supra, 14 Cal.4th at p. 571) reflects the distinction between the “adjudicatory determinations of an administrative agency [and the] . . . actions undertaken by such an agency in its legislative capacity.” (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34, fn. 2; see Tidewater, at pp. 571, 573–575.)8 “Generally speaking, a legislative action is the formulation of a rule to be applied in all future cases, while an adjudicatory act involves the actual application of such a rule to a specific set of existing facts.” (Strumsky, at p. 34, fn. 2.) The touchstone is
whether the rule will apply in more than one set of circumstances, not merely whether it relates to a particular regulated item. (See Pitts v. Perluss (1962) 58 Cal.2d 824, 834 [“the distinction between the quasi-legislative and quasi-judicial decision contemplates the function performed rather than the area of performance“].) Other decisions Dow attempts to analogize to this case are not to the contrary. (See Faulkner v. Cal. Toll Bridge Authority (1953) 40 Cal.2d 317, 321–324 [agency‘s approval of bonds for construction of single bridge not regulation because pertained to specific project]; Pacific Gas & Electric Co. v. Department of Water Resources (2003) 112 Cal.App.4th 477, 505-507 [agency‘s mechanism for recovering costs from “discrete project” not regulation because would not apply in future].)
Similarly, the fact that Dow is the only registrant of 1,3-D for use in California does not establish that the township cap program is insufficiently general to qualify as a regulation. It may be that a condition of one party‘s registration of a single pesticide does not apply generally if it governs only that party‘s actions. Here, however, the MOU states that the township cap program will apply to any other future registrants of 1,3-D products. And more importantly, the MOU requires Dow to ensure “the township caps are not exceeded” when deciding whether to approve the recommendation of a licensed pest control advisor, and a Dow-approved recommendation is a
words, every operator who wishes to apply 1,3-D must obtain Dow‘s approval, and Dow is required to withhold approval for any application that would exceed the local cap in a given year. The program thus imposes statewide limits on the use, and users, of 1,3-D.
The Department argues that, to the contrary, the MOU “does not place restrictions on . . . end-users” because it “will impact 1,3-D use in a township only when use exceeds the numeric limit on supply in that township. Generally, any such impacts are speculative and depend on the user and the township that [the] user is in. By contrast, [Dow] is the only entity with a direct and immediate change to its obligations under the MOU.” But an agency rule is no less “generally applicable” just because the specific parties against which it could be enforced are not identified when it is promulgated. The township cap program may never affect a given operator in the sense of preventing the operator from using the amount of 1,3-D it wants to, but the program still applies to all operators in the state who seek to use the pesticide. Thus, while we agree with the Department that the program is not generally applicable merely because it impacts the public at large by protecting against the “risks of long-term exposure to 1,3-D” (see Faulkner v. Cal. Toll Bridge Authority, supra, 40 Cal.2d at pp. 323–324), its impact on users of 1,3-D is significantly more concrete.
Finally, accepting the Department‘s argument would mean that an agency could avoid formal rulemaking by contracting with a regulated party to implement the rule. We agree with the trial court, however, that “a state regulation that is implemented through a private intermediary is still a regulation.” The fact that Dow happens to be the only registrant of 1,3-D in California does not mean the Department can informally regulate the pesticide at will so long as its rules are implemented as conditions of Dow‘s registration. In sum, the township cap program is a rule of general application.
D. The Second Tidewater Requirement
For a rule to qualify as a regulation under the second prong of Tidewater, it “must ‘implement, interpret, or make specific the law enforced or administered by [the agency].‘” (Tidewater, supra, 14 Cal.4th at p. 571.) The trial court did not analyze this issue, viewing it as uncontested. We agree
Dow claims that the township cap program nevertheless does not meet the second Tidewater requirement because the documents describing the program “simply provide guidance . . . regarding certain conditions . . . that, if unsatisfied or violated, would potentially cause [the Department] to take appropriate action against [Dow‘s] product registrations.” According to Dow, because in the MOU the Department did not promise either to cancel Dow‘s registrations if the company failed to enforce the township cap or not to cancel the company‘s registrations if it did comply with this condition, the documents at issue did not affect the Department‘s already-existing authority over registrations. But Dow incorrectly focuses on the mechanism by which the township cap program was implemented instead of on the program‘s practical effect. The program is a rule governing how 1,3-D will be used, not a rule governing how the Department will register pesticides. As such, it clearly implements and makes specific the law the Department administers.
III. DISPOSITION
The writ of mandate and judgment in favor of plaintiffs are affirmed. Plaintiffs are awarded their costs on appeal.
Humes, P.J.
WE CONCUR:
Banke, J.
Sanchez, J.
Vasquez v. California Dept. of Pesticide Regulation A154922
Trial Court: Superior Court of the County of Alameda
Trial Judge: Hon. Winifred Y. Smith
Counsel for Intervener and Appellant:
Stanley W. Landfair, David R. Simonton, Robert S. Schuda, Jessica L. Duggan, Dentons US; Trenton H. Norris, Sean M. SeLegue, Arnold & Porter Kaye Scholer
Counsel for Plaintiffs and Respondents:
Michael Meuter, Aaron Voit, Daniel Nesbit, California Rural Legal Assistance; Michael Freund, Michael Freund & Associates
Counsel for Defendant and Respondent:
Xavier Becerra and Rob Bonta, Attorneys General, Robert W. Byrne, Senior Assistant Attorney General, Annadel A. Almendras, Supervising Deputy Attorney General, Marc N. Melnick, Tamara T. Zakim, Deputy Attorneys General
Vasquez v. California Dept. of Pesticide Regulation A154922