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Friday, November 11, 2016

OEHHA Files Motion to Dismiss Monsanto Lawsuit

OEHHA Files Motion to Dismiss Monsanto Lawsuit
California’s Office of Environmental Health Hazard Assessment (OEHHA) has filed a motion that would dismiss a declaratory relief action brought by Agrochemical and biotech giant Monsanto Corporation if granted. 

The company filed its declaratory relief action in January 2016, three months after OEHHA filed its Notice of Intent to list Glyphosate--the active ingredient in Monsanto’s Roundup line of herbicides. Roundup is the most prevalent herbicide sold today.

OEHHA filed its motion for Judgment on the Pleadings (MJOP) in Fresno Superior Court where the case will be decided. A hearing on the (MJOP) and Monsanto’s opposition is scheduled for December 9, although the court may issue a tentative ruling before the hearing. In the event court the grants OEHHA's motion, Monsanto will most likely appeal the decision.

Since Monsanto filed its lawsuit against the agency in January, several organizations have intervened on both sides of the controversy. 

The organizations below have intervened on behalf of Monsanto:
California Citrus Mutual;
Western Plant Health Association;
Western Agricultural Processors Associations;
California Grain and Feed Association;
California Cotton Ginners & Growers Association; and
Almond Alliance of California.

The following organizations have intervened on behalf of OEHHA:
AFL-CIO;
Sierra Club;
Canadian Labor Congress;
Natural Resources Defense Council;
Environmental Law Foundation and The Center for Food Safety. 

Legal Implications

This case has much broader implications than on the listing of Glyphosate, and the outcome could have a significant impact on future chemical listings under Proposition 65.

Monsanto's lawsuit is challenging the constitutionality of the “Labor Code” listing mechanism, which directs OEHHA to add to the Proposition 65 list of carcinogens any chemical or substance given certain classifications by the International Agency for Research on Cancer (IARC). For many years, the agency has steadfastly main-tained it cannot consider scientific  arguments concerning the weight or quality of the evidence that informed IARC’s informed carcinogenicity determination.
OEHHA maintains that Labor Code listings are a “ministerial,” process making the listing of chemicals and substances identified by IARC as carcinogens essentially automatic. 

Monsanto argues this process is unconstitutional because the state “cedes the basis of its regulatory authority to an unelected and non-transparent foreign body that is not under the oversight or control of any federal or state government entity.”

But OEHHA denies that it cedes its authority to IARC in its brief, asserting that the Labor Code mechanism does not empower IARC to make decisions on behalf of California, but “simply provides a way for OEEHA to make the most of scarce resources. IARC’s scientific determinations are “the gold standard in carcinogen identification” that the U.S. federal government, and state and foreign governments, rely upon and trust, said the agency in its MJOP.

“There is simply no delegation of legislative power, when a statute merely relies on an existing authoritative source to exercise its independent authority to determine a technical factual issue,” OEHHA’s brief added.

Monsanto notes that when OEHHA evaluated the carcinogenicity of glyphosate in 2007, and concluded that “Based on the weight of the evidence, Glyphosate is judged as unlikely to pose a cancer hazard to humans.” 

The company mentions that since OEHHA’s 2007 review of glyphosate, neither the agency or any other California governmental entity has re-reviewed OEHHA’s 2007 assessment of glyphosate, or followed the process that IARC used in its determination that glyphosate is a carcinogen.

Monsanto’s opposition brief emphasizes that OEHHA’s Labor Code Regulation states that OEHHA cannot consider the underlying scientific basis for the classification of a chemical by IARC as causing cancer. CCR 27 §25904(c).

This method of rulemaking reflects a fundamental departure from the ordinary process of making laws in California and the United States more generally.

“IARC and the individuals it selected to make the classification determinations on glyphosate are not accountable to the California electorate. California voters can place no check on IARC’s decision-making, either directly or indirectly. And critically, no California governmental entity functions as the ultimate decision-maker to ensure that law. “Instead, IARC’s classification of glyphosate will become California law automatically following OEHHA’s ‘ministerial’ process, even though OEHHA itself previously reached the opposite conclusion. The deficiencies in this regulatory process are exacerbated by the fact that IARC itself is not subject to the procedural safeguards required of regulatory agencies in California, the United States, and around the world, such as public comment, review, and appeal,” Monsanto’s Opposition brief argues.

Monsanto in its brief emphasizes it is not asking the Court to resolve the question of whether glyphosate is or is not a carcinogen.  Instead, Monsanto seeks a ruling that OEHHA cannot, Consistent with the US. and California Constitutions, delegate this decision to IARC, a foreign body that is unaccountable to the California electorate. 

If Monsanto’s challenge is successful, the status of chemicals that have been listed by the Labor Code mechanism may be subject to reclassification, reconsideration or delisting.

The 2013 appellate court opinion in Styrene Information and Research Council v the Office of Environmental Health Hazard Assessment, caused OEHHA to reevaluate four listed chemicals and six additional chemicals under consideration for listing.

OEHHA says it has received more than 9,300 written comments in response to its notice of intent to list glyphosate.

The agency has not decided when it will finalize the proposed listing and is in the process of responding to its substantial backlog of public comments.

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Jack Schatz

Jack Schatz

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