Via Emmett Environmental Law and Policy Clinic

The Emmett Clinic filed an amicus brief in a 9th Circuit case challenging the Environmental Protection Agency’s approval of Monsanto’s XtendiMax—a new formulation of the highly-volatile and toxic herbicide dicamba.  EPA conditionally approved the product in 2016, based in part on Monsanto’s assurances that its formulation was less volatile than previous dicamba formulations.  Environmental and farming organizations challenged this decision in court.

Monsanto developed this new herbicide in response to increasing resistance to glyphosate (Roundup) in weeds.  Although dicamba is normally lethal to broadleaf crops such as soybeans and cotton, Monsanto genetically engineered varieties of these crops to be resistant to dicamba.  During the application process, commenters warned EPA that dicamba is very volatile and therefore has a tendency to drift, risking harm to other farmers’ fields or native vegetation.  As the Clinic’s brief explains, EPA’s approval of the herbicide resulted in widespread harm throughout the South and Midwest in 2017: at least 3.6 million acres of soybeans in 24 states were damaged by dicamba drift.  Farmers who want to plant soybeans feel that they have lost their freedom of choice: either they plant Monsanto’s resistant seeds or risk having their crops killed by drift from a neighboring farmer’s field.  EPA should not place farmers in this untenable position.

The Emmett Clinic filed this brief on behalf of several farmer support organizations: Family Farm Defenders, Farm and Ranch Freedom Alliance, Iowa Organic Association, Kansas Rural Center, Organic Farmers’ Agency for Relationship Marketing, Inc., Organic Farmers Association, and Save Our Crops Coalition.  Clinic student Heather Romero (JD ’19) and Deputy Director Shaun Goho wrote the brief.

Via Emmett Environmental Law and Policy Clinic

The Emmett Clinic filed an amicus brief  in a 9th Circuit case challenging the Environmental Protection Agency’s failure to ban agricultural uses of the organophosphate chlorpyrifos.  In 2016, EPA had proposed to remove all food tolerances for chlorpyrifos under the Federal Food Drug and Cosmetic Act—an action that would have prohibited all use of the pesticide on food crops.  Last year, however, Scott Pruitt reversed course and decided not to ban the pesticide, citing scientific uncertainty.  A coalition of environmental and farmworkers’ organizations have challenged this reversal in court.  The Clinic, representing the Alliance of Nurses for Health Environments, American Academy of Pediatrics, American Public Health Association, Migrant Clinicians Network, Physicians for Social Responsibility (PSR) and the San Francisco Bay Area Chapter of PSR, submitted an amicus brief in support of this challenge.

The brief explains that a significant body of research from both epidemiological and animal studies has demonstrated that children are vulnerable to long-lasting neurological harm from exposure to chlorpyrifos during pregnancy, even at levels far below the current tolerances permitted by EPA.  In particular, the studies show that chlorpyrifos can alter the very structure of the brain, as well as leading to attention deficit hyperactivity disorder and other behavioral problems.  In light of the large and robust research data demonstrating these harms, EPA cannot reasonably cite scientific uncertainty as a basis for failing to take action.

Clinic student Ryan Petty (JD ’19) wrote the brief under the supervision of Deputy Director Shaun Goho.

Via Emmett Environmental Law and Policy Clinic

The Emmett Environmental Law & Policy Clinic has released its new report, “Opportunities to Address Climate Change in the Farm Bill”, which summarizes the Clinic’s proposals for how to address climate change in the Farm Bill, both during the current authorization process and in the future.  The report provides recommendations for both climate mitigation strategies to reduce greenhouse gas (GHG) emissions and increase carbon sequestration from agriculture, and climate adaptation strategies to increase the resiliency of farms to the impacts of a changing climate.  The report’s specific recommendations are 1) incorporate resilience measures into crop insurance and conservation compliance to better manage on-farm climate risks under Titles II and XI; 2) ensure the best available science and research—including the outcome of pilot programs—are incorporated into Farm Bill programs; and 3) advance manure management collection and storage methods, as well as biogas development under Title IX to mitigate GHG contributions from livestock.

The paper was authored by Clinic students Sara Dewey, JD’17, Liz Hanson, HKS’18, Claire Horan, JD’18, Deputy Director Shaun Goho, and Director Wendy Jacobs.

Via Emmett Environmental Law and Policy Clinic

On November 20, 2017, the Emmett Environmental Law and Policy Clinic filed a brief in the Ninth Circuit supporting the release of important agency scientific documents under the Freedom of Information Act (FOIA). The Clinic filed the amicus brief on behalf of the Union of Concerned Scientists in a case involving draft Endangered Species Act (ESA) documents prepared by the U.S. Fish & Wildlife Service and the National Marine Fisheries Service (the Services) to assess the impact of a proposed Clean Water Act regulation on endangered and threatened species.

In December 2013, the Services prepared draft biological opinions concluding that the proposed regulation, which applied to power plant cooling water intake structures, would jeopardize the continued existence of some listed species. When the Environmental Protection Agency (EPA) finalized the regulation the following year, the Services released a joint biological opinion concluding that the regulation would not cause such jeopardy.

The Sierra Club filed FOIA requests, asking the Services to release the draft biological opinions and other draft ESA consultation documents. When the Services refused, invoking a doctrine known as the deliberative process privilege, the Sierra Club sued to gain access to the documents. The district court ruled in favor of the Sierra Club, ordering the Services to release the documents. The Services have appealed that decision to the Ninth Circuit Court of Appeals.

The Clinic’s brief argues that the deliberative process privilege should rarely apply to scientific documents such as biological opinions. Keeping such documents secret undermines government transparency and accountability. In science-driven processes like ESA consultation, it is important for the public and courts to be able to know that agencies have followed the expert advice of their scientists and that such analyses have not been undermined by political considerations.  Moreover, withholding these scientific documents does little to advance the purpose of the deliberative process privilege, which is to promote candid deliberations on sensitive policy matters. The brief therefore argues that the Ninth Circuit should adopt a presumption that the deliberative process privilege does not apply to ESA consultation documents.

Via Emmett Environmental Law and Policy Clinic

The Emmett Clinic released its Manual for Citizen Scientists Starting or Participating in Data Collection and Environmental Monitoring Projects in September, 2017. Building on this work, on October 13, 2017, the Clinic, together with the Environmental Defense Fund and the Environmental Law Institute convened a workshop called “Citizen Science and Environmental Protection.”

The workshop brought together representatives from federal, state, and local governments; citizen science organizations; environmental organizations; community groups; and academia. The keynote speaker was Bob Perciasepe, President of the Center for Climate and Energy Solutions (C2ES) and former Deputy Administrator of the Environmental Protection Agency.

Participants discussed the role of citizen science in environmental monitoring and enforcement, case studies of successful projects, legal and practical barriers for citizen scientists, and strategies for promoting citizen science in the coming years.  Based in part on the ideas generated in this workshop, the Clinic will be developing new citizen science-related student projects for future semesters.