California Court of Appeal ruled in favor of Stanford Environmental Law Clinic’s client Raptors Are The Solution. The court found that due to the discovery of new scientific data on the rat poison, diphacinone, the state must conduct an environmental analysis under the California Environmental Quality Act, (CEQA), before renewing the rodenticide’s registration.
California uses diphacinone as one of seven anticoagulant rodenticides to control rats. Rats that consume diphacinone or other anticoagulant rodenticides are frequently hunted by non-target wildlife, such as birds of prey, coyotes and bobcats. The Clinic’s client Raptors Are The Solution (Raptors) requested that the California Department of Pesticide Regulation review the registrations for licenses for seven anticoagulant rodenticides. This was in response to new scientific evidence.
The Department placed four rodenticides under reevaluation but declined to reevaluate others, including diphacinone which is one of the most toxic and popular anticoagulant rodenticides currently in use. Raptors narrowed the focus of the Department’s investigation to diphacinone, challenging its decision to renew the rodenticide with no reevaluation.
Although the trial court ruled in favor of the Department, Raptors appealed with the help of the Clinic. Raptors claimed that CEQA applied to the Department’s renewal decision and 2) that the Department failed to meet CEQA’s substantive requirements by failing to perform a meaningful analysis on the new science showing diphacinone’s harmful effects. In response, the Department claimed that CEQA shouldn’t apply to decisions not do something, i.e. decisions not to evaluate.
The Court, however, sided with Raptors in an unanimous opinion. The Court stated that CEQA’s description of CEQA was incorrectly interpreted to mean that only a portion of the environmental “project” in question should be considered. However, CEQA requires that all aspects of the action be considered. The Department’s “project” cannot be understood to be denial of reevaluation in isolation. It must be understood as the entire decision to renew without reevaluatingit. While CEQA does not apply to denials of renewal, it applies to affirmative renewal decisions and all their related parts.
Instead, the Department attempted to ignore diphacinone by grouping it with two other rodenticides and then comparing this group to the group of rodenticides reevaluated. Both actions minimized diphacinone’s impact, which is unique toxic, persistent, and pervasive. They also failed to meet the CEQA cumulative impacts analysis requirement.
Alana Reynolds (JD’23), a Stanford Environmental Law Clinic Student, referred to the case as “a win for informed government decision-making” and “a rational treatment of science which sounds environmental alarm bells.” She also cited the briefing on the appeal that “reveals the fundamental obligation guaranteed by CEQA that agencies must take into account new environmental evidence before reviewing or approving any impactful projects.” They draw on the experience and partnership of attorney Michael Graf who filed the original challenge and was co-counsel
The Court’s decision is reversed and the Department is instructed to conduct a cumulative impact analysis. This analysis will help to determine the environmental impacts of diphacinone. It will also allow the Department to reconsider its decision not to renew diphacinone. This decision is a step towards improving the health of the state’s non-target wildlife population and avoiding secondary poisoning.