Frequent Filers: The Attorneys Shaping EPA Pesticide Policy

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By David Schultz

Oct. 28 — You’ve heard of white shoe law firms. Earthjustice is a green shoe firm.

Through dozens of suits against the Environmental Protection Agency and other federal agencies, the nonprofit group with around 100 attorneys is having as big of an impact on the agency’s pesticide policy as firms many times its size. Its legal actions are frequently forcing the EPA to establish new procedures for studying the risks of pesticides and to make safety determinations on the chemicals far sooner than the agency had originally planned.

Also, among other nonprofit legal advocacy groups, Earthjustice is one of the most successful at recovering attorneys’ fees. This has led one former senior EPA official to question whether its decisions are driven by factors other than pure idealism.

Lisa Garcia, the group’s head of litigation on chemicals and pollution issues, said Earthjustice made a concerted effort over the past five years to push harder in the area of pesticide regulation. A native New Yorker with a long background in big-city environmental justice activism, Garcia said forming partnerships with worker groups—like the United Farm Workers labor union—helped broaden her perspective.

“It was realizing that some of these environmental justice concerns don’t always play out in urban areas,” she told Bloomberg BNA. “The people applying the pesticides are people.”

Big Impacts

Attorneys with Earthjustice are currently representing litigants in more than three dozen active federal lawsuits in which the EPA is listed as a defendant, according to a Bloomberg Law docket search. These include cases on climate change, industrial pollution and other environmental issues, in addition to pesticides.

Among its pesticide-related lawsuits, the one that’s had arguably the largest impact centers on the bug-killing chemical chlorpyrifos ( In re: Pesticide Action Network v. EPA , 9th Cir., No. 14-72794, 9/10/14 ).

The two Earthjustice-represented plaintiffs in this case are trying to force the EPA to rescind its approval of chlorpyrifos, the most widely used insecticide in the U.S. that’s sprayed on wheat, soy, corn and at least two dozen other food commodities. The plaintiffs are citing new scientific studies that show that exposure during pregnancy to even very small amounts can cause neurodevelopmental problems in children.

Over the past year, the appeals court hearing the suit has handed Earthjustice’s clients a string of victories and has given the EPA a firm deadline of March 31 to enact a ban on the chemical.

Margaret McKeown, the Ninth Circuit judge hearing the case, harshly criticized the EPA in a 2015 opinion, accusing it of “filibustering” to avoid taking action through a “cycle of incomplete responses, missed deadlines and unreasonable delay.”

“We were so vindicated,” Patti Goldman, the lead attorney in the case, told Bloomberg BNA. “Chlorpyrifos is a nasty pesticide for every way people encounter it. There are good reasons to go after it.”

Other Cases

Earthjustice’s plaintiffs also prevailed last year in a case involving sulfoxaflor, a Dow Chemical Co. insecticide. A panel of federal appeals court judges agreed with them that the EPA’s assessment of the chemical’s effects on bees was flawed and ordered the agency to redo its approval process ( Pollinator Stewardship Council v. EPA , 2015 BL 292549, 9th Cir., No. 13-72346, 9/10/15 ).

The group’s chemical litigation goes beyond just targeting the EPA decisions. In 2012, Earthjustice’s clients intervened in a case against the Department of Health and Human Services, which was being sued by an industry group after it placed the industrial chemical styrene on its list of carcinogens. The HHS ruling was ultimately upheld ( Styrene Info. & Research Ctr. v. Sebelius, 2013 BL 127985, D.D.C., No. 1:11-cv-01079, 5/13/13 ).

Nor is Earthjustice’s work on pesticides limited to the federal level. A 2011 lawsuit its clients brought in California against the chemical methyl iodide led its manufacturer to preemptively pull the strawberry fumigant from the marketplace after the court indicated it would likely side with the plaintiffs ( Pesticide Action Network N. Am. v. Cal. Dep’t of Pesticide Regulation, Cal. Ct. App., No. A132044, 5/18/11 ).

Finding Plaintiffs

The group’s beginnings trace back to the mid-1960s when it was founded as the Sierra Club Legal Defense Fund. It changed its name to Earthjustice in 1997 to better convey that its client base went far beyond just the Sierra Club itself.

Garcia, who came to Earthjustice in 2014 after a stint as an environmental justice adviser to former EPA chief Lisa Jackson, said Earthjustice’s attorneys typically don’t go looking for plaintiffs. Rather, she said, they seek to establish relationships with both large and small advocacy groups across the country.

“You work with groups and you build up trust and then when something comes up you can figure out if this is a legal issue we can handle,” she said. “Having trusting relationships can bring some really interesting matters to your door.”

Paul Towers, a director with Pesticide Action Network North America, one of Earthjustice’s most frequent clients, said one of the biggest strengths of the group’s attorneys is their willingness to bring their clients to the table when crafting a courtroom strategy. “What we respect about our relationship with them is their commitment to collaboration,” Towers told Bloomberg BNA. “That’s often unusual in legal work.”

He pointed to the chlorpyrifos case, in which PANNA is a plaintiff, and recalled that Earthjustice attorneys were intent on sitting down with his group’s scientists to learn about the health risks posed by the insecticide.

Attorneys’ Fees

In addition to suing the EPA over pesticides, Earthjustice works on cases that involve other environmental statutes, such as the regulation of air toxics under the Clean Air Act.

Most of these environmental statutes contain provisions that allow judges to order federal agencies to reimburse plaintiffs for their attorneys’ fees when an agency loses a lawsuit. And, according to the government’s data, few organizations have been as savvy as Earthjustice at using these attorneys’ fee provisions to recoup their legal expenses.

The federal government has paid out more than $2 million to Earthjustice since the 2008 fiscal year as part of its lawsuits against the EPA and other agencies, according to data from annual Treasury Department reports to Congress. That’s more than it paid to other nonprofit groups like the Sierra Club or the American Civil Liberties Union, as well as to the largest law firms like Covington & Burling, Dentons and DLA Piper.

Garcia said these fee awards play no role in determining which cases her attorneys will take and that Earthjustice does not depend on them for financial sustainability. They made up less than 4 percent of the group’s more than $54 million in revenues in 2015, according to its annual report for that year. The vast majority of Earthjustice’s revenue comes from charitable contributions from foundations and individuals.

Ultimately, she said, attorney’s fees play an important role in the environmental enforcement process by making it more affordable for individuals to take the government to court. “There’s an opportunity for the public to be kind of a watchdog,” Garcia said. “Congress passed a statute that said the public can walk into court and make sure the EPA is following its responsibility.”

Financial Motivations?

CropLife America, the main trade group representing pesticide makers, declined to comment for this story, citing ongoing litigation. But David Weinberg, an attorney who has represented CropLife in suits initiated by Earthjustice attorneys, said his attitude toward the group is one of respectful admiration.

“I think very highly of them,” Weinberg, an attorney at the firm Wiley Rein LLP in Washington, D.C., told Bloomberg BNA. “Litigating against them is the equivalent of litigating against a capable private law firm, in the sense that they understand both the substance of what they are dealing with and how litigation has to proceed to be effective, understanding where the pressure points are and how to deal with people professionally.”

However, from one former EPA official’s perspective, Earthjustice’s aggressive legal strategy elicits less admiration than irritation.

Retired EPA official Bill Jordan, who until earlier this year was the second in command at the agency’s pesticide office, said the group has targeted areas where, for a variety of reasons, the EPA has struggled to comply with the law.

This is especially the case with the Endangered Species Act, he said, which requires agencies to consult with the Fish and Wildlife Service and the National Marine Fisheries Service before taking an action that “may affect” a listed species. Decades-long litigation from Earthjustice and other groups has forced the three agencies to acknowledge they hadn’t been doing this for pesticide approvals and that they needed to develop a way to conduct these consultations regularly in the future.

‘Little Headway.’

However, Jordan said these Endangered Species Act lawsuits have so far led only to the creation of cumbersome new risk assessment and consultation processes that use up enormous resources but make little progress toward protecting wildlife. For example, he said, a pilot project examining the effects of just three chemicals on listed species resulted in tens of thousands of pages of scientific analysis, an unsustainable precedent for the thousands of other chemicals that still need to be reviewed.

“If the goal of these groups is to get changes in the way pesticides are used in order to protect endangered species, they’ve made very little headway on that front,” he told Bloomberg BNA. “If the goal is to get lots of attorneys’ fees, they’re succeeding.”

Jordan added that, if he ran an environmental group with an active legal arm like Earthjustice, “I would consider the endangered species lawsuits to be a smart strategy because it motivates donors, it bears a very high chance of winning [and] it puts pressure on the EPA.”

Priorities

Garcia disagrees with Jordan’s characterization of Earthjustice’s suits as financially motivated. But, as a former EPA official herself, she said she can see where his frustration is coming from.

“I know EPA would say, ‘If you stop suing us, maybe we can focus on doing the work,’” Garcia said. “Maybe sometimes the process does hamper their ability to move quickly. But others [at EPA] would say, ‘The process allowed us to really make sure that we got the best health or science data.’”

And, Garcia said, federal statutes, not environmental activists, are what determine the steps EPA is legally required to take. Earthjustice’s suits simply prod the agency to prioritize areas that had fallen by the wayside, she said.

“We use the court of law to force EPA to follow through with other issues they should be working on,” she said. “We elevate issues.”

To contact the reporter on this story: David Schultz in Washington at dSchultz@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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