Raptors Are The Solution v. Superior Court CA1/2 ( 2022 )

Filed 9/27/22 Raptors Are The Solution v. Superior Court CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
RAPTORS ARE THE
SOLUTION,
Plaintiff and Appellant,
v. A161787
THE SUPERIOR COURT OF
ALAMEDA COUNTY, (Alameda County
Super. Ct. No.
Defendant and
RG18908605)
Respondent;
LIPHATECH, INC. et al.,
Real Parties in Interest.
Plaintiff and appellant Raptors Are The Solution (Raptors) appeals the
trial court’s order denying its petition for writ of mandate filed against
California Department of Pesticide Regulation (the Department). The
petition alleged that the Department abused its discretion and acted contrary
to the law in its decision not to reevaluate diphacinone, a registered
rodenticide.
We reverse the trial court’s judgment denying Raptors’ petition for writ
of mandate.
1
BACKGROUND
Before turning to the factual and procedural history of this case, we
first summarize the regulations pertaining to the Department’s registration,
renewal, and reevaluation of pesticides to provide context for Raptors’
challenge.
I.
Registration of Pesticides
The Department oversees a pesticide registration program that aims
“[t]o provide for the proper, safe, and efficient use of pesticides essential for
production of food and fiber and for protection of the public health and safety”
while protecting the environment “from environmentally harmful pesticides
by prohibiting, regulating, or ensuring proper stewardship of those
pesticides.” (Food & Agr. Code, § 11501, subds. (a), (b).)
A pesticide must have a certificate of registration from the Department
before it can be manufactured or sold in California. (Food & Agr. Code,
§ 12811.) A pesticide must first be registered by the United States
Environmental Protection Agency (the EPA) in order to be eligible for
registration in California. (7 U.S.C. § 136a.) The Department then conducts
“a thorough and timely evaluation” of the pesticide pursuant to Food and
Agricultural Code section 12824. This includes the review of specific data
that the registrant was required to submit to the EPA as well as
supplemental data required by the Department. (Cal. Code Regs., tit. 3,
§ 6159.)1
The Department may refuse to register a pesticide if, among other
reasons, a pesticide “has demonstrated serious uncontrollable adverse effects
1All further statutory references are to title 3 of the California Code of
Regulations unless otherwise noted.
2
either within or outside the agricultural environment” or if its use “is of less
public value or greater detriment to the environment than the benefit
received by its use.” (Food & Agr. Code, § 12825, subds. (a), (b).) The
Department may also register a pesticide but place appropriate restrictions
on its use, including “limitations on quantity, area, and manner of
application.” (Id., § 12824.)
II.
The Renewal Process
Pesticide registrations expire on the last day of each year and must be
renewed annually with the Department. (Food & Agr. Code, § 12817.) As
part of the renewal application, the registrant must pay a fee and certify that
he or she has submitted all known “factual or scientific evidence of any
adverse effect or risk of the pesticide to human health or the environment.”
(§§ 6210, subd. (a), 6215, subd. (a).)
“Each renewal shall be issued within 60 days after the [Department]
receives an accurate and complete renewal application unless the
[Department] takes action pursuant to Sections 12816, 12825, or 12827 of the
Food and Agricultural Code.” (§ 6215, subd. (b).) Those referenced sections
provide that a registration may be cancelled if it fails to satisfy the criteria
for registration or if the registrant otherwise fails to comply with the Food
and Agricultural Code.
Further, the Department shall, “when renewing a pesticide without a
reevaluation, make a written finding that [it] has not received sufficient
information necessitating reevaluation pursuant to Sections 6220 and 6221.”
(§ 6215, subd. (c).) When registering, renewing, or reevaluating a pesticide,
the Department must post its proposed decision on its official bulletin boards
for 30 days for public review and comment. (§ 6253, subd. (a).)
3
III.
The Reevaluation Process
“The [Department] may, at any time, evaluate a registered
pesticide . . . . The [Department] shall investigate all reported episodes and
information received by the [Department] that indicate a pesticide may have
caused, or is likely to cause, a significant adverse impact, or that indicate
there is an alternative that may significantly reduce an adverse
environmental impact. If the [Department] finds from the investigation that
a significant adverse impact has occurred or is likely to occur or that such an
alternative is available, the pesticide involved shall be reevaluated.”
(§ 6220.) The specific factors that warrant reevaluation include
environmental contamination, pesticide residue overtolerance and fish or
wildlife hazard. (§ 6221.)
“If information is obtained from an individual or organization
indicating possible adverse effect from the use of a pesticide, the
[Department] shall respond in writing to the individual or organization
indicating the reasons for [its] decision either to reevaluate or not reevaluate
the pesticide registration based upon the information submitted.” (§ 6222,
subd. (b).) The Department’s decision to reevaluate a pesticide is not tied to
the 60-day renewal period for the registration of the pesticide. (Californians
for Alternatives to Toxics v. Department of Pesticide Regulation (2006)
136 Cal.App.4th 1049, 1066 (CATS).)
IV.
Raptors’ Challenge to the Renewal of Diphacinone
On December 22, 2017, in response to the Department’s proposed
decision to renew rodenticide registrations for 2018, Raptors requested that
the Department initiate reevaluation of three first-generation anticoagulant
4
rodenticides (FGARs) and four second-generation anticoagulant rodenticides
(SGARs).2 Raptors argued that the continued use of these rodenticides posed
a significant risk and/or is likely to have significant cumulative impacts on
wildlife, and that the Department was therefore required to reevaluate these
rodenticides pursuant to section 6220. Raptors attached several exhibits to
its request and provided additional information and data over the course of
the next several months in support of its request for reevaluation.
In March 2018, the Department responded to Raptors that it was “in
the process of reviewing data submitted by the California Department of Fish
and Wildlife and wildlife organizations” to determine the potential adverse
impacts of the continued use of FGARs and SGARs on non-target wildlife.
The Department further wrote that it was “proceeding with the renewal of
[the seven rodenticides] and will not be placing them into reevaluation at this
time.” On April 18, 2018, the Department published a “Final Decision
Regarding Renewal or Registration of Pesticide Products for 2018” that
confirmed its decision to renew the subject rodenticides without reevaluation.
On June 13, 2018, Raptors filed a verified petition for writ of mandate.
The petition alleged two causes of action against the Department for violation
of the California Environmental Quality Act (CEQA) and violation of the
Department’s own regulations based on its decision to renew the subject
rodenticides for 2018 without reevaluation. On October 19, 2018, Raptors
filed an amended petition that added various agencies and companies as real
2 The three FGARs are diphacinone, chlorophacinone and warfarin.
The four SGARs are brodifacoum, bromadiolone, difethialone, and
difenacoum. Anticoagulant rodenticides generally work by disrupting the
blood-clotting mechanism in the target animal, which causes hemorrhaging
and ultimately leads to death.
5
parties in interest. These parties had all received a renewal from the
Department for one or more of the seven challenged rodenticides for 2018.
On November 16, 2018, the Department wrote to Raptors’ counsel that
it had completed its investigation of the subject rodenticides in response to
Raptors’ request and that it would begin reevaluation of SGARs, but not
FGARs. The Department reasoned that its “investigation of the reported
impacts found that the rate of FGAR exposure among non-target wildlife is
generally decreasing and is lower than for SGARS.” The letter was
accompanied by a 35-page report that summarized the Department’s
investigation of FGARs and SGARs based on the data submitted and its
reasons for placing SGARs into reevaluation but not FGARs. At the same
time, the Department published its proposed decision to reevaluate the four
SGARs.
The Department subsequently filed a demurrer to the first amended
petition that argued, among other things, that the Department was not
obligated to place a pesticide into reevaluation during the 60-day renewal
period based on the holding in CATS, supra, 136 Cal.App.4th at page 1066
(“[r]eevaluation can take place at any time and is not linked in any way to
annual renewal”). The trial court agreed and sustained the demurrer with
leave to amend.
On May 24, 2019, Raptors filed a second amended petition that
narrowed its challenge to the Department’s decision to renew the registration
of diphacinone (one of the three FGARs) without reevaluation. The second
amended petition alleged two causes of action: 1) challenge to the
Department’s April 18, 2018 decision to renew the registration of diphacinone
without reevaluation and 2) challenge to the Department’s
6
November 16, 2018 decision not to reevaluate diphacinone.3 The first cause
of action was dismissed pursuant to the parties’ stipulation.
On November 17, 2020, following briefing by the parties and real
parties in interest, the trial court heard and denied Raptors’ second amended
petition. The trial court held that the Department’s decision not to
reevaluate diphacinone did not constitute an abuse of discretion because the
Department’s decision was supported by substantial evidence based on the
record.
On January 11, 2021, Raptors filed its notice of appeal of the trial
court’s November 17, 2020 order.4 On January 14, 2021, the trial court
entered judgment in favor of the Department. As the Department notes in its
brief, Raptors’ notice of appeal was filed prematurely prior to the trial court’s
entry of judgment. The Department does not contend that the appeal should
be denied on this basis. This court, in its discretion, will treat the notice of
appeal as having been filed immediately after entry of judgment pursuant to
California Rules of Court, rule 8.104(d)(2), and therefore timely.
3The second amended petition erroneously references the
Department’s two decisions as April 18, 2019, and November 16, 2019.
4 Raptors’ notice of appeal also included reference to the trial court’s
May 7, 2019 ruling that sustained the Department’s demurrer to the first
amended petition and the stipulated dismissal of Raptors’ first cause of action
in the second amended petition. Raptors’ opening brief states that it is only
appealing the trial court’s holding as to the second cause of action (whether
the Department’s decision not to reevaluate diphacinone violated CEQA) and
that it has elected not to proceed on appeal as to the dismissed first cause of
action.
7
DISCUSSION
I.
Standard of Review
In a case that involves a public agency’s compliance with CEQA, “the
appellate court reviews the agency’s action, not the trial court’s decision; in
that sense appellate judicial review under CEQA is de novo.” (Vineyard Area
Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007)
40 Cal.4th 412, 427 (Vineyard).) Like the trial court, our review of the
challenged decision for compliance with CEQA “shall extend only to whether
there was a prejudicial abuse of discretion.” (Pub. Resources Code,
§ 21168.5.) “Abuse of discretion is established if [the Department] has not
proceeded in a manner required by law or if the determination or decision is
not supported by substantial evidence.” (Ibid.)
“This statutory language has been interpreted as classifying abuses of
discretion into two types of agency error—namely, legal error (the failure to
proceed in the manner required by law) and factual error (making findings
that are not supported by substantial evidence). [Citation.]” (POET, LLC v.
State Air Resources Bd. (2013) 218 Cal.App.4th 681, 710-711.) “Judicial
review of these two types of error differs significantly: while we determine de
novo whether the agency has employed the correct procedures, ‘scrupulously
enforc[ing] all legislatively mandated CEQA requirements’ [citation], we
accord greater deference to the agency’s substantive factual conclusions.”
(Vineyard, supra, 40 Cal.4th at p. 435.)
Under CEQA, “substantial evidence” means “enough relevant
information and reasonable inferences from this information that a fair
argument can be made to support a conclusion, even though other conclusions
8
might also be reached.” (Cal. Code Regs., tit. 14, § 15384, subd. (a).)5 A
reviewing court may not set aside an agency’s decision “on the ground that an
opposite conclusion would have been equally or more reasonable. [Citation.]
A court’s task is not to weigh conflicting evidence and determine who has the
better argument when the dispute is whether adverse effects have been
mitigated or could be better mitigated.” (Laurel Heights Improvement Assn.
v. Regents of University of California (1988) 47 Cal.3d 376, 393 (Laurel
Heights).) Indeed, a reviewing court has “neither the resources nor scientific
expertise to engage in such analysis, even if the statutorily prescribed
standard of review permitted [it] to do so.” (Ibid.)
II.
Compliance with Substantive CEQA Requirements
“CEQA is a comprehensive scheme designed to provide long-term
protection to the environment. [Citation.] In enacting CEQA, the
Legislature declared its intention that all public agencies responsible for
regulating activities affecting the environment give prime consideration to
preventing environmental damage when carrying out their duties.”
(Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 112
(Mountain Lion).) In general, CEQA applies to discretionary projects carried
out by public agencies (Pub. Resources Code, § 21080, subd. (a).) CEQA
requires a public agency to either prepare an environmental impact report
(EIR) where there is substantial evidence that a proposed project will have a
significant effect on the environment or adopt a negative declaration where
there is no substantial evidence of a significant effect based on the record.
(Pub. Resources Code, § 21080, subds. (c), (d).)
5 Title 14, section 15000 et seq. of the California Code of Regulations
codifies the regulations under CEQA.
9
“Pursuant to Public Resources Code section 21080.5, state regulatory
programs which meet certain environmental requirements and are certified
by the Secretary of the Resources Agency are exempt from some of the usual
CEQA requirements. [Citation.] There is no mandate for such programs to
prepare initial studies, negative declarations, and EIRs.” (Pesticide Action
Network North America v. Department of Pesticide Regulation (2017)
16 Cal.App.5th 224, 239 (PANNA).)
Instead, these programs submit a “plan or other written
documentation” in lieu of submitting an EIR in support of certain activities or
discretionary projects. (Pub. Resources Code, § 21080.5, subd. (a).) Such a
plan or document “serves as a functional equivalent of an EIR.” (Mountain
Lion, supra, 16 Cal.4th at p. 113.) However, as this court has held, the
environmental documents prepared by these programs “remain subject to the
broad policy goals and substantive standards of CEQA not affected by the
limited exemption set forth in section 21080.5, subdivision (c).” (PANNA,
supra, 16 Cal.App.5th at p. 242.) “The same CEQA guideline which confirms
that certified regulatory programs are ‘exempt from the requirements for
preparing EIRs, negative declarations, and initial studies’ immediately
explains, ‘A certified program remains subject to other provisions in CEQA
such as the policy of avoiding significant adverse effects on the environment
where feasible.’ (Cal. Code [R]egs., tit. 14, § 15250, italics added.)” (PANNA
at p. 241.)
The Department’s pesticide registration program is a certified
regulatory program under CEQA and governs “[t]he registration, evaluation,
and classification of pesticides.” (Cal. Code Regs., tit. 14, § 15251,
subd. (i)(1).) This certified program is exempt from preparing EIRs under
CEQA, but as its own regulations reflect, CEQA requires it to prepare public
10
reports that include “a statement of any significant adverse environmental
effect that can reasonably be expected to occur, directly or indirectly, from
implementing the proposal, and a statement of any reasonable measures that
are available to minimize significant adverse environmental impact.”
(§ 6254.) The reports must also “contain a statement and discussion of
reasonable alternatives which would reduce any significant environmental
impact.” (Ibid.) The Department’s program remains subject to “CEQA’s
substantive requirements to thoroughly evaluate specific environmental
effects before it approves an activity.” (PANNA, supra, 16 Cal.App.5th at
p. 243.)
III.
CEQA’s Application to the Department’s Decision
Before turning to the merits of the challenged decision, we first address
the Department’s argument that CEQA does not apply. Public Resources
Code section 21080, subdivision (5) states that CEQA does not apply to
“[p]rojects which a public agency rejects or disapproves.” The Department
argues that its decision not to reevaluate diphacinone falls into this
subdivision since it was a decision not to do something. In response, Raptors
argues that the “project” at issue was not merely the Department’s decision
not to reevaluate diphacinone, but more broadly its decision to renew the
registration for diphacinone without placing it into reevaluation. We find
that CEQA applies to the challenged decision.
Under CEQA, a “project” is defined as “the whole of an action, which
has a potential for resulting in either a direct physical change in the
environment, or a reasonably foreseeable indirect physical change in the
environment” that is undertaken by a public agency. (Cal. Code Regs., tit. 14,
§ 15378, subd. (a).) “Courts have considered separate activities as one CEQA
11
project and required them to be reviewed together where, for example, the
second activity is a reasonably foreseeable consequence of the first activity
[citation]; the second activity is a future expansion of the first activity that
will change the scope of the first activity’s impacts [citation]; or both
activities are integral parts of the same project [citation].” (Sierra Club v.
West Side Irrigation Dist. (2005) 128 Cal.App.4th 690, 698 (Sierra).)
The policy behind CEQA mandates “that environmental considerations
do not become submerged by chopping a large project into many little ones—
each with a minimal potential impact on the environment—which
cumulatively may have disastrous consequences.” (Bozung v. Local Agency
Formation Com. (1975) 13 Cal.3d 263, 283-284.) Indeed, “[a] public agency
may not divide a single project into smaller individual projects in order to
avoid its responsibility to consider the environmental impacts of the project
as a whole.” (Sierra, supra, 128 Cal.App.4th at p. 698.)
The Department contends that Raptors waived any challenge to the
Department’s renewal decision since the only issue raised in Raptors’ opening
brief was the Department’s November 16, 2018 decision not to reevaluate
diphacinone challenged in its second cause of action.6 The Department
further argues that even if we were to consider renewal and reevaluation as
part of one project, “CEQA does not impose separate requirements on the
annual renewal decisions,” an argument it bases on CATS¸ supra,
136 Cal.App.4th 1049. We do not find these arguments persuasive.
6 The second amended petition originally included a first cause of action
that challenged the Department’s April 18, 2018 decision to renew the
registration of diphacinone without reevaluation. The parties stipulated to
dismiss this cause of action based on the holding in CATS,
supra¸136 Cal.App.4th 1049, 1066 (that the decision to reevaluate a pesticide
is not tied to the 60-day renewal period) while preserving Raptors’ right to
appeal the dismissal of this cause of action.
12
First, the record reflects that the Department’s November 16, 2018
decision not to reevaluate diphacinone was not an isolated activity but
resulted from the Department’s proposed decision to renew its registration
for 2018 and Raptors’ December 22, 2017 responsive request that the
Department reevaluate that and other rodenticides. Raptors supplemented
its request with additional information over the next several months. The
Department’s own regulations demonstrate the connection between renewal
and reevaluation, requiring that, “when renewing a pesticide registration
without a reevaluation, [the Department “shall”] make a written finding that
[it] has not received sufficient information necessitating reevaluation
pursuant to Sections 6220 and 6221.” (§ 6215, subd. (c).) The Department
made such a finding in its April 2018 Final Decision.
The Department’s response to Raptors’ request for reevaluation in
March 2018 further demonstrates the relationship. It stated it was “in the
process of reviewing data submitted by the California Department of Fish
and Wildlife and wildlife organizations” and would be proceeding with
renewal of the rodenticides without placing them into reevaluation at this
time. The Department confirmed this in its “Final Decision Regarding
Renewal of Registration of Pesticide Products for 2018” that was published on
April 18, 2018. (Italics added.) Raptors challenged this decision under its
now dismissed first cause of action. On November 16, 2018, the Department
further responded to Raptors that it had completed its investigation in
response to Raptors’ December 2017 request and would be placing SGARs
into reevaluation, but not FGARs, which include diphacinone. This decision
was accompanied by a 35-page investigation report.
The foregoing shows that the Department’s ultimate decision not to
reevaluate diphacinone was connected to its renewal decision. Pursuant to
13
section 6253, on November 17, 2017, the Department posted its notice of
proposed decision to renew pesticide registrations for 2018 for at least
30 days for public review and comment. Raptors submitted its comments
within this 30-day timeframe that included a request that diphacinone be
reevaluated based on the significant risk its continued use posed to wildlife.
Pursuant to section 6215, subdivision (b), the Department renewed the
registration for diphacinone within 60 days of receiving a completed renewal
application. The Department did not and was not required to make a
decision as to reevaluation within this limited 60-day period and could
instead “initiate reevaluation once it has completed its review of all available
evidence.” (CATS, supra, 136 Cal.App.4th at p. 1066.) In CATS, the court
emphasized that the Department was not required to make a rushed decision
regarding reevaluation but could initiate reevaluation after it had an
opportunity to review all the scientific evidence before it. (Ibid.) This
underscores the importance of reevaluation to the Department’s substantive
assessment of a pesticide’s environmental impact and continued use.
Accordingly, here, following renewal, the Department continued its
review and investigation pursuant to Raptors’ original request. In
November 2018, it notified Raptors that it had completed its investigation
and would not be reevaluating diphacinone. We view this not as a
disapproval of a project but as the Department’s approval of the continued
use and sale of this rodenticide. The Department in essence, was affirming
the earlier finding it made at renewal that it had not received sufficient
evidence to show it should undertake reevaluation. (§ 6215, subd. (c).)
This case is distinguishable from Main San Gabriel Basin Watermaster
v. State Water Resources Control. Bd. (1993) 12 Cal.App.4th 1371 (San
Gabriel), the main case cited by the Department to support its position that
14
CEQA does not apply to project disapprovals. In San Gabriel, the court held
that CEQA review did not apply to a public agency’s disapproval of a landfill
expansion project. The court reasoned that the Legislature “evidently
concluded that public agencies should not be forced to commit their resources
to the costly and time-consuming environmental review process for proposed
private development projects slated for rejection, whatever the reason for
agency disapproval.” (San Gabriel, at p. 1384.) Here, by contrast, the project
at issue is not development or construction proposed by a private individual,
but a request for the Department, a public agency, to reevaluate a rodenticide
that it originally approved for sale and use in California. Again, the
Department’s own regulations acknowledge its obligations to scrupulously
evaluate pesticides before they are registered and then to continuously
monitor whether reevaluation is warranted in response to new information.
Based on the foregoing, we interpret the project or “the whole of [the]
action” to encompass both the Department’s decision to renew the
registration of diphacinone and its decision not to reevaluate diphacinone in
response to Raptors’ request. These are related decisions that ultimately
resolve one question: whether the continued, unrestricted use of diphacinone
is warranted given its potential adverse impact on the environment. This
interpretation furthers CEQA’s substantive policy that certified regulatory
programs must avoid “significant adverse effects on the environment where
feasible.” (Cal. Code Regs., tit. 14, § 15250.) To hold otherwise would mean
that only the Department’s decision to re-evaluate a pesticide could be
challenged while a decision declining re-evaluation would be insulated from
CEQA, despite the greater potential for significant adverse environmental
effects from a decision of the latter kind.
15
The Department argues that CEQA does not apply to its annual
renewal decisions based on the holding in CATS, supra, 136 Cal.App.4th
1049. There, the court held that the Department was not required “to make a
hasty decision regarding possible reevaluation of a pesticide by tying
reevaluation to the 60-day time frame of annual renewal. Revaluation can
take place at any time and is not linked in any way to annual renewal.”
(CATS, at p. 1066.) As discussed above, we view the decision in CATS as
highlighting the importance of reevaluation by not limiting it to the 60-day
time frame for renewal.
In PANNA, supra, 16 Cal.App.5th 224, the Department made a similar
argument before this court—that its pesticide registration program was
exempt from CEQA’s substantive requirements based on the holding in
CATS. This court disagreed and held that “[CATS] concerned a CEQA
challenge related to the Department’s procedure for annually reviewing
registered pesticides and whether the Department had to annually reopen
the review for public comment as part of the renewal process.” (PANNA, at
p. 242.) The CATS court did not address CEQA’s substantive requirements
governing the substance of the Department’s environmental review and does
not stand for the proposition that the Department is exempt from those
requirements. (PANNA, at p. 242.)
As in PANNA, here, the challenge does not involve the timing or
procedure governing the Department’s renewal and reevaluation process;
instead, it raises the question whether the Department’s environmental
review of diphacinone satisfies CEQA’s substantive mandate. PANNA, not
CATS, governs the applicability of CEQA here.
16
IV.
There Was Prejudicial Abuse of Discretion by the Department.
We now turn to Raptors’ substantive arguments that there was a
prejudicial abuse of discretion by the Department. “Abuse of discretion is
established if the [Department] has not proceeded in a manner required by
law or if the determination or decision is not supported by substantial
evidence.” (Pub. Resources Code, § 21168.5.) Raptors contends that the
Department committed the following legal errors in its decision not to
reevaluate diphacinone: 1) the Department failed to perform a cumulative
impacts analysis under CEQA; and 2) the Department’s investigation report
failed to disclose accurate and complete information. These claimed legal
errors are reviewed de novo. (Vineyard, supra, 40 Cal.4th at p. 435.)
A. Cumulative Impacts Analysis
“A substantive CEQA requirement is the assessment of a project’s
cumulative impacts on the environment. This concept considers the
incremental effect a proposed approval may have when viewed in connection
with past, current or future approved projects.” (PANNA, supra,
16 Cal.App.5th at p. 248.) “Cumulative impacts” is defined as “two or more
individual effects which, when considered together, are considerable or which
compound or increase other environmental impacts.” (Cal. Code Regs.,
tit. 14, § 15355.)
In every case, a public agency is required “to make at least a
preliminary search for potential cumulative environmental effects, and, if any
such effect were perceived, at least a preliminary assessment of its
significance.” (Laupheimer v. State of California (1988) 200 Cal.App.3d 440,
462-463 (Laupheimer).) While “ ‘technical perfection’ ” is not required, “the
cumulative impact analysis must be substantively meaningful.” (Joy Road
Area Forest & Watershed Assn. v. California Dept. of Forestry & Fire
17
Protection (2006) 142 Cal.App.4th 656, 676.) This includes “adequacy,
completeness, and a good faith effort at full disclosure.” (Cal. Code Regs.,
tit. 14, § 15151.) A public agency’s failure to consider cumulative impacts
constitutes a prejudicial abuse of discretion. (Environmental Protection
Information Center, Inc. v. Johnson (1985) 170 Cal.App.3d 604, 625.)
“A cumulative analysis which understates information concerning the
severity and significance of cumulative impacts impedes meaningful public
discussion and skews the decisionmaker’s perspective concerning the
environmental consequences of the project, the necessity for mitigation
measures, and the appropriateness of project approval.” (Citizens to Preserve
the Ojai v. County of Ventura (1985) 176 Cal.App.3d 421, 431.) For example,
in Laupheimer, supra, 200 Cal.App.3d 440, the court found that the
Department of Forestry failed to perform a sufficient analysis of the
cumulative impacts of a timber harvesting plan, including the increased risks
of causing landslides and runoff damage in areas beyond the logging site.
The court criticized the Department of Forestry’s “approach” as “minimiz[ing]
the adverse effects of logging operations on the 28 Plan site itself, and . . .
assum[ing] that such minimization would sufficiently mitigate offsite impacts
of whatever kind. Such an approach was expressly rejected as ‘at odds with
the concept of cumulative effect, which assesses cumulative damage as a
whole greater than the sum of its parts.’ ” (Id. at p. 466.)
Here, Raptors argues that the Department’s decision improperly relied
on a comparative analysis of the effects of FGARs versus SGARs, instead of a
cumulative analysis that considers the incremental effect of diphacinone
when used in addition to other anticoagulant rodenticides over time. Raptors
contends that this lack of a cumulative impacts analysis constitutes an abuse
of discretion by the Department. We agree.
18
Although Raptors’ original request for reevaluation included seven
rodenticide products (three FGARs and four SGARs), the Department was
obligated under CEQA to perform a cumulative impacts analysis as to each of
these rodenticides, including diphacinone. (PANNA, supra, 16 Cal.App.5th at
pp. 249-250.) This includes an analysis of each rodenticide’s prevalence,
toxicity, effect on non-target wildlife, and the effect of its interaction with
other rodenticides (like brodifacoum) on non-target wildlife. The
Department’s 35-page report contains no discussion of the cumulative
impacts resulting from the combination of diphacinone with other
rodenticides present in the environment, but instead focuses on the relative
toxicity and effects of FGARs compared to those of SGARs.7 This is so despite
the fact that, with respect to mammals, diphacinone was shown to have a
toxicity value only second to brodifacoum (an SGAR). In the Department’s
letter notifying Raptors of its decision, the Department states that it “has
decided not to reevaluate FGARs at this time” because its “investigation of
the reported impacts found that the rate of FGAR exposure among non-target
wildlife is generally decreasing and is lower than for SGARs.”
After discussing the various data and studies that were submitted by
Raptors’ counsel, the Department stated in its investigation report that it
found FGARs to be less toxic, less persistent, and less bioaccumulative than
SGARs. Based on this, the Department concluded that “current uses of
FGARs are unlikely to have a significant adverse impact to non-target
wildlife.” Put differently, the Department concluded that because FGARs as
a class posed less risk than SGARs as a class, FGARs were unlikely to have a
significant adverse impact. What is lacking is any consideration of the effects
7 The investigation report makes no mention of “cumulative impacts”
at all.
19
of diphacinone in particular, including any cumulative or incremental
impacts resulting from its continued use in addition to the use and effects of
other approved rodenticides in the environment. The Department thus failed
to consider the cumulative impacts it was required to consider under CEQA.
The importance of a cumulative impacts analysis stems from the fact
that damage to the environment often occurs incrementally from various
small projects. In Kings County Farm Bureau v. City of Hanford (1990)
221 Cal.App.3d 692, 720, the court found that an EIR that focused on “the
ratio between the project’s impacts and the overall problem” did not
adequately assess the project’s cumulative impacts. The court held that “the
standard for a cumulative impacts analysis is defined by the use of the term
‘collectively significant’ in Guidelines section 15355 and the analysis must
assess the collective or combined effect of energy development. The EIR
improperly focused upon the individual project’s relative effects and omitted
facts relevant to an analysis of the collective effect this and other sources will
have upon air quality.” (Kings County, at p. 721.)
Similarly, here, the Department did not assess diphacinone’s
cumulative or incremental effect on non-target wildlife in conjunction with
the effects of other anticoagulant rodenticides over time. (See PANNA,
supra, 224 Cal.App.5th at p. 248.) Instead, it concluded that reevaluation of
FGARs was not warranted since FGARs were found to be less toxic and
persistent than SGARs. However, in exercising its regulatory functions, the
Department was required to consider each rodenticide “in its full
environmental context and not in a vacuum.” (Laupheimer, supra,
200 Cal.App.3d at p. 462.)
The Department’s report focuses on FGARs and SGARs as two broad
categories of rodenticides, and seemingly minimizes the adverse effects of
20
FGARs as a whole by comparing them to the more severe effects of SGARs.
This ignores the unique attributes and risks of diphacinone and more
importantly does not inform the reader of the potential adverse effects of
continued diphacinone use when considered in addition to the other
rodenticides circulating in the environment. This is precisely what CEQA
was designed to guard against; small projects or decisions that cumulatively
could have significant consequences on the environment.
The studies submitted to the Department discussed the use and
prevalence of diphacinone. For example, as summarized in the investigation
report, in a 16-year study of urban bobcats in Los Angeles, diphacinone was
detected in approximately 30% of the blood samples tested and 40% of the
liver samples tested. It was the most frequently detected FGAR, despite
having a shorter half-life than any of the SGARs. The report further found
that, with the exception of bromadiolone, more diphacinone was sold and
used than any other rodenticide in 2016.
The Department argues that the urban bobcat study is not significant
since it did not find a positive association between diphacinone exposure and
mange in bobcats. However, in the comments by one of the study’s authors
that was submitted to the Department, the author notes that FGARs are not
detected “as frequently in liver samples because they have much shorter half-
lives than the second-generation compounds.” The author goes on to conclude
that “[o]ne of our significant findings using this method is that we learned we
have been underestimating wildlife (or at least bobcat) exposure to first-
generation anticoagulants by relying solely on liver samples to do the
testing.” Although this does not mean that there is in fact a positive
association between diphacinone exposure and mange, it obligated the
21
Department to at least meaningfully consider the cumulative effects of
diphacinone given its prevalence and bioaccumulation in non-target wildlife.
Finally, even if the Department deemed concerns over the cumulative
effect of continued use of diphacinone to be “too remote and speculative to be
significant,” at the very least it should have “made the administrative record
show the requisite consideration.” (Laupheimer, supra, 200 Cal.App.3d at
p. 467.) The Department was obligated “to make at least a preliminary
search for potential cumulative environmental effects, and, if any such effect
were perceived, at least a preliminary assessment of its significance.” (Id. at
pp. 462-463.) Even if the cumulative impacts of diphacinone were not readily
apparent from the information the Department received, it still had to state
this conclusion and explain how it was reached. (See PANNA, supra,
16 Cal.App.5th at p. 250.) The Department did not do either but instead
concluded that diphacinone did not warrant reevaluation because FGARs as
a class are less problematic than SGARs.
B. Inaccurate Disclosure of Information
Raptors next argues that the Department committed separate legal
errors under CEQA by failing to disclose accurate and complete information
in various portions of its decision and investigation report.
1. The Department’s Discussion of Diphacinone with Other
FGARs and Conclusion of a “General Downward Trend
in FGAR Exposure Rates” Constituted Informational
Deficiencies.
Raptors argues that the Department’s investigation report “failed as a
CEQA informational document” because 1) it discussed diphacinone together
with other less harmful FGARs rather than by itself; and 2) its statement
concerning “ ‘a general downward trend in FGAR exposure rates’ ” was
misleading. The Department argues that Raptors did not raise these
arguments before the trial court. Although Raptors did not raise these exact
22
arguments below, it did argue that it was an error for the Department to
compare the relative effects of FGARs and SGARs because such an approach
disregards the impact of diphacinone as an individual rodenticide and as a
contributing factor affecting the environment. This argument is adequately
related to the informational deficiency issues Raptors now raises, as they all
stem from the Department’s failure to evaluate the effects of diphacinone
individually.
Even if Raptors did not adequately raise these issues below, we
exercise our discretion and decide these questions of law on appeal, especially
since they involve issues of public interest. (POET, LLC v. State Air
Resources Bd., supra, 218 Cal.App.4th 681, 750-751.) We find that based on
the Department’s failure to perform a cumulative impacts analysis, its
investigation report also fails as an accurate informational document
because, by grouping diphacinone together with other FCARS, it fails to
provide “for intelligent weighing of the environmental consequences of the
project.” (City of Santee v. County of San Diego (1989) 214 Cal.App.3d 1438,
1455.)
The issue here was not whether the Department should reevaluate
FGARs as a group of rodenticides, but whether it should reevaluate any of
the individual rodenticides, including diphacinone, as requested by Raptors.
By discussing the effects and trends surrounding FGARs as a group, the
Department did not accurately inform the public of the “significant adverse
environmental effect that can reasonably be expected to occur, directly or
indirectly” from continuing to allow diphacinone to circulate in the
environment. (§ 6254.) As discussed above, diphacinone was the most
frequently detected FGAR in liver and blood samples collected from the
urban bobcat study and has a higher toxicity than three of the four SGARs.
23
Although the Department’s statement that “there is a general downward
trend in FGAR exposure rates” may be supported by the data, it missed the
mark because it failed to inform the public as to the effects of diphacinone.
Based on its prevalence and toxicity, diphacinone is more akin to an SGAR
and its adverse effects were obscured by the Department’s grouping of it with
other less prevalent and toxic FGARs.8
2. The 1980 Owl Study
Raptors contends that the Department’s discussion of a 1980 owl study
was misinformative and undermined CEQA’s basic information disclosure
purposes. This study was one of several studies summarized in a 2004
document by the EPA that assessed rodenticide risks in birds and non-target
mammals. The principal study examined the effects of several FGARs and
SGARs on 36 barn owls. The EPA wrote in its 2004 document that “[s]ix of
the 18 owls exposed to second-generation anticoagulants died, whereas none
of the 6 owls offered first-generation anticoagulant-poisoned rats exhibited
any signs of intoxication.” The Department summarized this 2004 EPA
document in its investigation report and stated, with respect to this study,
that “[t]here were no mortalities and no observed sublethal effects in any of
the owls fed rats exposed to FGARs.”
8 For example, mammals are more sensitive to diphacinone (or in other
words, it is more toxic for them) than either of the other FGARs and any of
the four SGARs except brodifacoum. The absorption rate for diphacinone is
also higher than either of the other FGARs and is the same as one of the
three SGARs. The same is true for exposure rates among non-target wildlife;
diphacinone’s exposure rate is higher than that of either of the other two
FGARs and higher than one of the SGARs. Finally, the data available
indicates there is higher usage of diphacinone than of any other FGAR or
SGAR, and the second highest usage is of an SGAR (bromadiolone).
24
Raptors argues that the Department’s above statement was inaccurate
because the 1980 study had also included a preliminary trial in which four
owls were fed diphacinone-killed mice. All four owls “displayed anticoagulant
poisoning, and 3 died from massive hemorrhaging.”9 We do not find that the
Department erred in its summary. Both the EPA and the Department
accurately summarized the study’s principal experiment, and both discussed
the study’s findings as to barn owls—the subjects of the principal experiment.
Raptors does not contend that the summary of this principal study was
incorrect, only that the Department failed to reference the outcome of the
study’s preliminary trial. The EPA’s 2004 document itself does not reference
the preliminary trial, and Raptors does not provide any support that the
omitting reference to such preliminary trials constitutes a violation of CEQA.
Lastly, Raptors argues that the Department’s use of this old owl study
was misleading because it dismissed current science. We do not find this
argument persuasive. As the Department states in its brief, it discussed this
study in its report to further support its position that SGARs generally posed
greater risks than FGARs. However, the Department also considered and
discussed numerous other more recent data and studies, including 2015 and
2018 studies on bobcats and a 2015 study on coyotes.
3. The 2015 Bobcat Study
Raptors next argues that the Department’s discussion of the 2015
bobcat study was misinformative and did not comport with CEQA. This was
a 16-year study of anticoagulant rodenticide exposure in urban bobcats. In
discussing the study’s findings in an email to the National Park Service, one
of the study’s authors noted that among the liver samples tested, they “most
frequently detected second-generation compounds brodifacoum and
9 The four owls used in the preliminary trial were not barn owls.
25
bromadiolone.” The study’s author also stated that they “have not found an
association between mange and [FGARs].” However, the author explains
that “because we underestimate first-generation anticoagulant exposure
when we test liver samples, a lack of association between mange and first-
generation anticoagulants could potentially be driven by a bias in the shorter
tissue half-life of first-generation compounds compared to second-generation
compounds.”
In its report, the Department discussed this study in detail and then
later stated that this study “found statistically significant associations
between SGARs and mange, but not between FGARs and mange.” The
Department included this statement to support its conclusion that SGARs
were more toxic than FGARs. Raptors argues that this conclusory statement
effectively “dismissed the significant diphacinone implications” from this
study. This includes the study’s findings that diphacinone was the third
most prevalent anticoagulant compound detected in liver samples and was
detected in blood samples three times more frequently compared to SGARs.
The Department’s focus on a comparative analysis of FGARs and
SGARs undoubtably influenced what it chose to highlight from the 2015
study’s findings. As we discussed above, the Department erred in not
performing a cumulative impacts analysis. Had it done so, perhaps it would
have focused more on the study’s findings as to diphacinone and its exposure
rate in bobcats. However, we do not find that the Department’s statement
constituted a legal error, as the study’s author herself stated it did not find
an association found between mange and FGARs. She hypothesized that the
lack of association “could potentially be driven by a bias in the shorter tissue
half-life” of FGARs compared to SGARs. Raptors argues that because
diphacinone was commonly detected in the samples tested, it must have
26
cumulatively contributed to mange along with the SGARs that were detected.
This finding was not made in the study. Given this, we do not find the
Department’s statement to be incorrect or misleading.
C. Substantial Evidence
Lastly, Raptors argues that even under the substantial evidence
standard, which Raptors argues should not be applied here, the challenged
decision still constitutes a violation of CEQA. The substantial evidence
standard is a more deferential standard where all reasonable doubts are
resolved in favor of the agency’s decision. (Laurel Heights, supra, 47 Cal.3d
at p. 393.)
Raptors contends that there was no substantial evidence to support the
Department’s decision based on the same arguments it had made to support
the contention that the Department committed legal error. Since we were
asked to determine whether there was a prejudicial abuse of discretion based
on legal error and did find legal error in the Department’s lack of a
cumulative impacts analysis, we need not analyze the Department’s decision
under the substantial evidence standard.
DISPOSITION
The judgment denying Raptors’ petition for writ of mandate is reversed.
The judgment is remanded to the superior court with instructions to issue a
writ of mandate directing the Department to reconsider its decision not to
place diphacinone into reevaluation after it performs a cumulative impacts
analysis. On remand, the Department should analyze the particular
characteristics of diphacinone that are relevant to assessing its impact on the
environment. This includes a discussion, to the extent there is available
information or data, on diphacinone’s prevalence, toxicity, effect on non-
target wildlife, and the effect of its interaction with other rodenticides on
27
non-target wildlife. The Department’s analysis should not minimize any
adverse effects of diphacinone by grouping it with FGARs in general or by
comparing the relative effects of FGARs versus SGARs. Raptors shall
recover its costs on appeal.
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STEWART, J.
We concur.
RICHMAN, Acting P.J.
MAYFIELD, J. *
Raptors Are the Solution v. Cal. Dept. of Pesticide Regulation (A161787)
*Judge of the Mendocino Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
29