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Western Crop Protection Ass'n v. Davis

ELR Citation: 30 ELR 20602
Nos. No. C029727, 95 Cal. 2d 631/(Cal. Ct. App., 05/09/2000)

The court affirms a trial court denial of a writ of mandate that would have prohibited the governor of California from publishing Proposition 65, a list of chemicals known to the state to cause reproductive toxicity. Under the regulations implementing the list of chemicals, a committee was designated to identify specific chemicals known to cause reproductive toxicity. The state environmental health agency would determine whether an authoritative body formally identified chemicals causing reproductive toxicity. The U.S. Environmental Protection Agency (EPA) was designated as such an authoritative body. After EPA identified for its toxic release inventory (TRI) 66 agricultural chemicals that caused reproductive toxicity, the state environmental health agency announced its intent to list the EPA-identified chemicals in California. An organization representing agricultural businesses sought to prohibit the listing based on the argument that the environmental health agency usurped the identification committee's functions. The organization argued that under the Emergency Planning and Community Right-to-Know Act (EPCRA), EPA lists chemicals known to cause and reasonably anticipated to cause reproductive toxicity, whereas California requires that chemicals be known to cause reproductive toxicity.

The court first holds that the broad federal standard under EPCRA does not prohibit the state from listing an EPA-identified chemical on the state list. The federal known to cause standard is the same as the state standard. However, EPCRA reasonably anticipated to cause standard is ambiguous on its face, and suggests a dichotomy under which chemicals could be placed on the state list where there is less than sufficient evidence to afford an inference of causal connection between exposure and developmental abnormality. Nevertheless, assuming that the federal EPCRA TRI standard is less than that for Proposition 65, it is not improper for the state to find that a particular chemical has been placed on the federal TRI by EPA as causing reproductive toxicity. The state can do so by determining whether the reasons for EPA placement meet the state listing criteria. The state environmental health agency has the authority to examine the administrative record of the EPA TRI procedure to determine if there is substantial evidence that EPA has placed a chemical on the EPA list because it meets the state's criteria of causing reproductive toxicity. Thus, the fact that the federal standard may be broad enough to allow inclusion of chemicals on the TRI that do not satisfy the state standard does not prevent the state environmental health agency from determining that a chemical was placed on the TRI by EPA as causing reproductive toxicity. The court next holds that the agricultural organization failed to supply evidence compelling a finding that EPA reviewers did not use their own TRI studies in listing the chemicals at issue. Therefore, the organization failed to meet its burden of showing that the disputed chemical list is inconsistent with state statute because the state agency usurped the identification committee's function.

The full text of this decision is available from ELR (24 pp., ELR Order No. L-227).

Counsel for Plaintiffs
Patricia L. Shanks
McCutchen, Doyle, Brown & Enersen
Three Embarcadero Ctr., Ste. 1800, San Francisco CA 94111
(415) 393-2000

Counsel for Defendants
Roderick E. Walston, Chief Ass't Attorney General
Attorney General's Office
1300 I St., Ste. 1740, Sacramento CA 95814
(916) 324-5437