Oakland Weighs Legal Options to Stop State Plans to Spray Moths

By Judith Scherr
Tuesday March 04, 2008

Posted Wed., March 5—On Tuesday, Oakland joined a growing movement to force the state, through political and legal means, to back off from plans for the aerial spraying of a pesticide over parts of Northern California intended to eradicate the Light Brown Apple Moth (LBAM). 

In open session the council unanimously approved a resolution opposing the spray and in closed session it gave City Attorney John Russo direction to coordinate with other Bay Area cities “on an aggressive legal strategy” to compel the state to perform a “serious” environmental review before conducting the spray program. 

A strategy that could also include the cities of Berkeley, Albany and El Cerrito—Russo hadn't talked to attorneys in the other cities yet—would bring the weight of the legal system as well as political pressure to bear on the state agency, Russo told the Planet in a phone interview Wednesday.  

“It seems that we have to go in that direction,” he said. 

In the regular Tuesday evening council meeting that followed the closed session, the Oakland City Council unanimously approved a resolution opposing the spray. Berkeley passed a measure opposing the spray at its Feb. 26 meeting and will meet in closed session to discuss legal strategies March 17. Albany passed a resolution opposing the spray in January. 

The California Department of Food and Agriculture (CDFA) has declared an emergency in parts of Santa Cruz and Monterey counties as well as parts of Alameda (including Berkeley, Oakland, Piedmont and Albany), Contra Costa, Marin, San Francisco and San Mateo counties due to the numbers of LBAMs found in these areas. 

“There's a legal question of whether they can undertake mass spraying under an emergency,” Russo said, noting that very simple acts require environmental review, such as cutting down a tree, and that the spraying of this product carries with it many complex questions. 

“We're not saying they can't spray,” he said. “They need to show there's no environmental impact.” 

Having declared an emergency, the state is permitted to spray the product—CheckMate made by Suterra of Bend, Ore.—before conducting an environmental review. The state has begun the review, which will not be complete before it resumes spraying in Monterey and Santa Cruz counties June 1 and in the Bay Area in August. 

The state says the infestation is an emergency because it could devastate 250 different crops grown in California. Spray opponents point out that California has suffered no crop damage from the LBAM to date. 

The first aerial spray to be conducted over an urban area was done in September in Monterey and Santa Cruz counties, after which more than 600 people reported ill effects including shortness of breath, nausea, itchy skin and more. 

Santa Cruz County has litigation pending against the state, targeting the absence of an environmental review before spraying. The case will go to court April 24. Russo said he may be directed by the City Council to join Santa Cruz in an amicus brief. 

Checkmate is a synthetic pheromone contained in microcapsules with inert ingredients for aerial spraying. Some medical professionals have said the microcapsules themselves present a danger to the respiratory tract of sensitive people and others say the inert ingredients that accompany the pheromone may be dangerous. The state says the product is safe for humans, but opponents say it has not been studied for long-term health impacts. 

A pheromone is a scent emitted by a female moth that attracts a male moth. When synthetic pheromones are introduced, males become confused and no longer mate, interrupting the reproductive cycle.