Angelita C. et al. v. California Department of Pesticide Regulation

Angelita C. et al. v. California Department of Pesticide Regulation is an administrative complaint filed in June 1999 with the US Environmental Protection Agency about disproportionate harm to Latino children from toxic pesticides used near schools. It said that the California Department of Pesticide Regulation (CDPR) had caused discriminatory harm to Latino children when it renewed the registration for methyl bromide in January 1999 without considering the effect on nearby schools, which in some cases lay immediately adjacent to the fields.

Title VI of the federal Civil Rights Act of 1964 prohibits recipients of federal funds from discriminating, even through unintended effects of neutral legislation. California has a similar law, section 11135.

Background

Strawberry cultivation is a billion-dollar industry in Central California. California supplies 90% of the nation's strawberries.

In addition to strawberries, Salinas Valley grows lettuce and has been called the salad bowl of the nation. It and the city of Monterey were the setting for some of John Steinbeck's novels. While etched into American consciousness by the photography of Dorothea Lange and John Ford's adaptation of The Grapes of Wrath starring Henry Fonda, the Dust Bowl Okies who streamed into California in the 1930s were historical anomalies. Mexicans had been migrating north to work in those fields since the 19th century.

The complaint was named "Angelita C." after the mother of a student at Ohlone Elementary School in Pajaro, where it is surrounded by strawberry fields. Another three schools were in Pajaro and Salinas in Monterey County. Another was in Santa Cruz County near Watsonville. Two were in Oxnard in Ventura County, including Rio Mesa High, attended by the son of Maria Garcia, who later appealed the settlement of Angelita C. after the subsequent recertification of methyl bromide as a pesticide as if Angelita C. had never happened.

Agriculture Some 25 million acres of California's 101 million total make up the 77,000 farms in the state. The average farm size is well below the national average. California has the largest agricultural economy in the country by revenue, and generated more than $46 billion in 2013 on farms that are smaller than the nationwide average.

The University of California, Davis has had a strawberry breeding program since the 1930s that generated about 60% of California's strawberry plants. Two high yield varieties released in 2019, Moxie and Royal Royce, may increase strawberry yield as much as 29 percent. California grows 90% of the strawberries produced in the United States, many of them on the Central Coast. By 2022 strawberry production for Monterey County alone had reached $958.7 million.

Farmworker families

These strawberries were almost entirely harvested by poorly paid Mixtec and Triqui workers from Oaxaca. through back-breaking stoop labor in toxic working conditions. About 75% of the farmworkers in California were undocumented in 2014 and in Santa Cruz County the percentage was 83%. An estimated 165,000 California farmworkers are indigenous Mexicans. More than half speak Mixteco and another 30 percent speak Zapoteco.

But the increase in acres in production may have been due to cheap and available land in southern Monterey County. Agricultural acreage peaked and began to shrink. Migrant farm-workers kept coming, as they have since the bracero program began in 1942, mostly from the same Mixteco villages. Most of these fieldworkers had a fifth grade education in Spanish at best, let alone English. Wage theft, crippling production quotas and predatory sharecropping arrangements and extremely toxic work environments have historically been routine. Workers share rooms with up to three other people in squalid pest-infested structures whose roofs may leak or whose plumbing may not work, Some prefer to live outdoors altogether.

A 2008 study using 2005 data by the Institute of Spatial Analysis and the California Center for Rural Policy at Humboldt State found that 593 acres of agricultural land fell within a quarter-mile of Salinas schools. But pesticide drift is not the only means of exposure, cautioned a study author: “Everyone living in that region,” is a farm-worker, and thousands of farm-workers carry the chemicals home on their clothing, or into public places. An early finding of the National Institute of Health's Agricultural Health Study was that "participants could be exposed to pesticides through living near where pesticides were mixed or stored, and laundering clothing worn during pesticide application".

The risks to farmworkers and their families specifically are in addition to the health risks to the rural population as a whole. The US Centers for Disease Control (CDC) estimates, for example, that rural populations are four times less likely to have access to healthy food. Rural communities are poorer, more elderly, and lack transportation and access to health services. They see a higher rate of excess deaths from cancer and cardiovascular disease.

Legal Title VI of the Civil Rights Act of 1964 and its implementing regulations prohibit recipients of federal financial funding from discriminating based on race, color, or national origin, whether the disproportionate harm is intentional or simply a disproportionate effect of a neutral policy.

However, in 2001 the US Supreme Court ruled in Alexander v. Sandoval that individuals have no right to sue over the discriminatory effects of government actions, and the United States Environmental Protection Agency (EPA) itself is responsible for overseeing and investigating its own actions under Title VI regulations outlined in 40 C.F.R. Part 7. The plaintiffs filed an administrative complaint about disproportionately harmful effects on non-white schoolchildren because the California Department of Pesticide Regulation received federal funds.

Environment Soil fumigation with chloropicrin (CP) was first introduced in the 1950s and methyl bromide (MB) in the 1960s to improve productivity. Arthropods, nematodes, weeds, fungi and pathogens like Verticillium dahliae, Fusarium oxysporum, and Macrophomina phaseolina can destroy a harvest. Early on, CP and MB were mixed together to allow strawberries to be produced as an annual rather than biennial crop without crop rotation. Fumigants also led to higher and more predictable yields and fruit quality. Strawberry yields statewide ranged from two to four tons an acre before fumigants and reached 16 tons an acre by 1969.

The Montreal Protocol, an international environmental agreement first signed in 1987 in an effort to reduce damage to the ozone layer, included methyl bromine among the chemicals to be phased out because it breaks down in the atmosphere, especially in sunlight, and releases destructive bromine radicals that can take up to two years to break down completely. In 2012 California growers were still using 3.8 million pounds of methyl bromide on 30,000 treated acres, compared to 6.5 million pounds on 53,000 treated acres in 2002, through waivers granted by the EPA.

Complaint Filed by the Center for Race, Poverty & the Environment, California Rural Legal Assistance and the Farmworker Justice Fund, Inc. on behalf of Latino parents and children at six California schools,COMPLAINT UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. §2000d AND 40 C.F.R. Part 7, Center on Race, Poverty, and Development, 1999, pp. 1–42 complaint 16R-99-R9 said that the CDPR renewal of the registration of methyl bromide caused disproportionate health harm to Latino school children due to their over-representation in schools near the fields where the pesticide was used.

Research by the complainants found that all schools near the release of methyl bromide had a student population that was majority non-white. The student populations of Virginia Rocca Barton Elementary School in Salinas and Ohlone Elementary School both were more than 95% ethnic. In 1995 complainants found that a total of 75,000 pounds of methyl bromide was released within a 1.5 mile radius of 476 students. Notably, the spraying occurred from mid-August through late May, while school was in session.

Investigation To calculate whether or not spraying methyl bromide had an adverse effect on children in the vicinity, the OCR used data from 1995 to 2001 in the CDPR's previously developed model.Angelita C, 42211, Preliminary Finding, OCR, Title Complaint VI 16R-99-R9, California Department of Pesticide Regulation, 2011. and found that both short-term and long-term exposure levels exceeded the EPA's threshold of concern (35 ppb and 1.3 ppb, respectively). It also found merit to the claim of a disproportionate adverse effect on Latino schoolchildren between 1995 and 2001. This was, it said, enough evidence of a prima facie violation of Title VI. This was the EPA's first ever and to date only finding of a prima facie violation.

Many limitations of the EPA investigation impaired its outcome. An open letter to the OCR signed by a long list of advocates in response to a 2016 proposal to loosen its accountability requirements scathingly noted among many other enforcement failures that the agency had taken "nearly twelve years" to respond to Angelita C., which by the EPA's own standards should have had preliminary findings within 180 days. "While the complaint languished, Latino schoolchildren were exposed on a daily basis to toxic pesticides," they said. Even then, another author angrily wrote, the EPA essentially "told the CDPR 'Just try to help people stay out of the way.'" The EPA excluded complainants from the investigation, and did not notify the plaintiffs of its finding of discrimination until it announced the settlement agreement, without giving any relief to Latino schoolchildren from pesticide exposure during mandatory school attendance.

In 2011 when the settlement was reached, the EPA planned to replace methyl bromide with methyl iodide, which breaks down within 12 days and does not deplete the ozone layer. A plaintiffs' attorney in the methyl bromide complaint said:

As a "carcinogen, neurotoxin, and endocrine disruptor" the adverse health effects of methyl iodide on farmworkers and others in the vicinity of its use turned out to be if anything worse than methyl bromide's, and its manufacturer withdrew it from the US market ahead of a decision in litigation brought by Earthjustice.

Regulation

California Department of Pesticide Regulation "Ongoing, systematic and widespread violations of the civil rights of residents and workers in California's farmworking communities, both through actively discriminatory policies that cause disproportionate harm, but more pervasively through failure to investigate, to protect and to enforce existing state laws and regulations,” have occurred, according to Jane Sellen of the Environmental Health Sciences Center of the University of California at Davis.

A lawsuit filed March 29, 2024 in Monterey Superior Court against the California DPR and the Monterey County Agricultural Commissioner by Earthjustice on behalf of the Pajaro Valley Federation of Teachers, Safe Ag Safe Schools, Center for Farmworker Families, Monterey Bay Central Labor Council and Californians for Pesticide Reform alleged that students at three schools in the Pajaro Valley—including one named in the original Angelita C. complaint—are exposed to more than twice the levels of 1,3-dichloropropene (1,3-D) that the CDR has said was the maximum safe dose, yet the DPR continues to routinely approve applications for further use of the chemical.

EPA