1

Filed 9/19/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

PESTICIDE ACTION NETWORK 

NORTH AMERICA et al.,

Plaintiffs and Appellants,

v.

CALIFORNIA DEPARTMENT OF 

PESTICIDE REGULATION et al.,

Defendants and Respondents,

VALENT U.S.A. CORPORATION et al.,

 Real Parties in Interest.

 A145632

 (Alameda County

 Super. Ct. No. RG14731906)

Defendant California Department of Pesticide Regulation (the Department), 

approved amended labels for two previously registered pesticides: Dinotefuran 20SG,

manufactured by real party in interest Mistui Chemicals Agro, Inc. (Mitsui), and Venom 

Insecticide, manufactured by real party in interest Valent U.S.A. Corporation (Valent). 

The amended labels allowed both pesticides to be used on additional crops and allowed 

Venom Insecticide to be used in increased quantities. Both pesticides contain the active 

ingredient dinotefuran, which is from a class of pesticides called neonicotinoids. In 

approving the labels, the Department concluded uses of both pesticides in accord with the

label amendments would cause no significant environmental effect on honeybees or the 

environment. 

Plaintiff Pesticide Action Network North America (PANNA) filed suit challenging 

the approvals and alleging the Department violated the California Environmental Quality 

Act (CEQA) by approving the label amendments without sufficient environmental 
2

review. The trial court denied PANNA’s writ petition, which PANNA appeals. The 

record demonstrating the Department’s efforts at environmental review here were

deficient. So, we reverse.

BACKGROUND

The Department’s Regulation of Pesticides

The Department is responsible for regulating the distribution, sale, and use of 

pesticides in California. State regulations seek to provide for the proper, safe, and 

efficient use of pesticides essential for food production; to protect public health and 

safety; and to protect the environment from harm by ensuring the proper stewardship of 

pesticide products. (Food & Agr. Code, § 11501.)

All pesticides sold and used in California must be licensed or registered. (Food & 

Agr. Code, § 12811.) Before a pesticide can be registered in California, it must first be 

registered by the United States Environmental Protection Agency (the EPA). (7 U.S.C. § 

136a.) Once the EPA registers a pesticide, it is eligible for the Department’s review. The 

Department must thoroughly evaluate the pesticide to ensure that, when used in 

conformance with its labeling, it is effective and will not harm human health or the 

environment. (Food & Agr. Code, § 12824.)

A pesticide that demonstrates “serious uncontrollable adverse effects either within 

or outside the agricultural environment,” presents a “greater detriment to the environment 

than the benefit received by its use” or which has “a reasonable, effective, and practicable 

alternate material . . . less destructive to the environment” may not be registered. (Food 

& Agr. Code, § 12825, subds. (a), (b), (c).) The Department may also place appropriate 

restrictions on how, where and in what quantities any registered pesticide may be used. 

(Food & Agr. Code, § 12824.) To remain valid, pesticide registrations must be renewed 

annually. (Food & Agr. Code, § 12817.) 

The Department also is obligated to continuously evaluate registered pesticides to 

ensure they pose no danger to the environment. (Food & Agr. Code, § 12824.) The 

Department must investigate “all reported episodes and information [it receives] that 

indicate a pesticide may have caused, or is likely to cause, a significant adverse impact, 
3

or that indicate there is an alternative that may significantly reduce an adverse

environmental impact. If the Director finds from the investigation that a significant 

adverse impact has occurred or is likely to occur or that such an alternative is available, 

the pesticide involved shall be reevaluated.” (Cal. Code Regs., tit. 3, § 6220.) The 

Department may cancel the registration of a pesticide it determines presents serious 

uncontrollable adverse effects to the environment. (Food & Agr. Code, § 12825.)

Neonicotinoids

Neonicotinoids are a class of widely used pesticides subject to the Department’s 

regulatory oversight. They are “systemic,” meaning plants exposed to them readily 

absorb the chemicals which are distributed throughout the plant, including the tissues, 

pollen, and nectar. This is advantageous for controlling pests because neonicotinoids can 

protect all parts of the plant. 

Neonicotinoids are classified into one of three chemical groups: nitroguanidines, 

nitromethylenes, and cyanoamidines. This case involves the nitroguanidine chemical 

group. It includes four chemicals: imidacloprid, thiamethoxam, clothianidin, and 

dinotefuran. Dinotefuran is the active ingredient in the two pesticide products at issue, 

Mistui’s Dinotefuran 20SG and Valent’s Venom Insecticide. Dinotefuran 20SG was first 

registered by the Department in June 2005, and its registration has been renewed annually 

since then. Venom Insecticide was first registered in March 2006 , and its registration 

has been renewed annually since then as well. A Mitsui-sponsored study from 2002 

describes dinotefuran as “one of the most toxicologically benign and environmentally 

friendly synthetic insecticides ever developed for commercial use” with “the potential to 

replace more acutely toxic pesticide products and to reduce the risks to human health and 

the environment when compared to existing products.” The labels for both products have 

carried warnings of their toxicity to honey bees since their initial registration. 

Declining Bee Populations

In 2006, the sudden and widespread decline of honey bees in the United States 

began to be reported as a phenomenon called “colony collapse disorder.” This 

phenomenon is characterized by the sudden loss of worker adult bees from managed 
4

hives, resulting in the eventual collapse of the entire bee colony within a few weeks. The 

2012 “Report on the National Stakeholders Conference on Honey Bee Health,” (“2012 

Stakeholder Report”), observed that approximately 28 to 33 percent of United States 

honeybee colonies have failed each year since 2006, compared to a normal loss rate of 10 

to percent. 

This decline has been alarming and concerning to California’s regulatory agencies. 

The Department has acknowledged, “Honeybees are vital to the pollination of many of 

California’s agricultural crops, which are critical to our national food system and 

essential to the economy of the state.” Improving the health of honey bee colonies is 

considered imperative to meet the demands of U.S agriculture for pollination and to 

ensure food security.

Scientists have embarked on an intensive level of research towards understanding 

the cause of honey bee colony collapse. Several possible causes for colony collapse 

disorder have been considered, and consensus appears to be building that “a complex set 

of stressors and pathogens is associated with [colony collapse disorder], and researchers 

are increasingly using multi-factorial approaches to studying causes of colony losses.” 

The 2012 Stakeholder Report noted the “[a]cute and sublethal effects of pesticides on 

honey bees have been increasingly documented, and are a primary concern.” It also 

explained colony collapse disorder “is a complex phenomenon because several factors 

seem to be interacting to cause [colony collapse]. [Citation.] The suspected factors 

include pests, pathogens, pesticides, nutritional deficiencies and bee hive management 

practices.” 

The Department’s Neonicotinoid Reevaluation

Years ago, the Department received data showing a potential hazard to honey bees 

from pesticides containing the active ingredient imidacloprid, one of the neonicotinoids 

in the nitroguanidine chemical group. The data showed that imidacloprid could 

accumulate in plants at levels toxic to honeybees. In February 2009, on the basis of this 

information, the Department initiated a reevaluation of imidacloprid as well as 

clothianidin, thiamethoxam, and dinotefuran due to their “chemical and toxicological 
5

similarities” to imidacloprid. Based on these 4 chemicals, 50 pesticide registrants and 

282 pesticide products—including Dinotefuran 20SG and Venom Insecticide—became 

subject to reevaluation. 

This reevaluation is underway. The Department has requested data, including 

additional pesticide safety studies, from neonicotinoid pesticide registrants in order to 

characterize the nature and extent of the potential hazard for the reevaluation. But as of 

late 2013, the Department had “not received conclusive evidence that neonicotinoids pose 

a significant threat to honeybees.” Further, the results of its neonicotinoid monitoring 

studies on various crops as of late 2013 “have been inconclusive overall” but have led to 

further testing. Results from acute toxicity studies on honeybee larvae are under review 

by the Department.1

 

1

In judicial notice requests dated February 16, 2016, and May 20, 2016, the 

Department seeks judicial notice of four documents, two of which are government reports 

related to both EPA and Department neonicotinoid reevaluation updates. No oppositions 

to the requests were filed, and we deferred ruling on the requests until a decision on the 

merits of the case. We now rule that the Department’s requests for judicial notice are 

denied as to all documents. 

Two of the documents not granted judicial notice are: (1) the Joint PMRA / 

USEPA Re-evaluation Update for the Pollinator Risk Assessment of the Neonicotinoid 

Insecticide, dated January 6, 2016; and (2) the Department’s March 2016 Semiannual 

Report Summarizing the Reevaluation Status of Pesticide Products During the Period of 

July 1, 2015 through December 31, 2015. Both are government documents properly 

subject to judicial notice as official acts of the agency. (Etcheverry v. Tri-Ag Serv., Inc. 

(2000) 22 Cal.4th 316, 330–331; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 

Cal.App.4th 471, 483.) However, both reports post-date the Department’s June 2014 

approval decision at issue in this appeal and were not relevant to that decision. (Mangini 

v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 (Mangini).)

The other two documents not granted judicial notice are the Order Denying 

Motion for Leave to File Amicus Brief, dated April 29, 2016, in Ellis v. Bradbury (N.D. 

Cal. No. 3:13-cv-01266-MMC) and PANNA’s Further Request for Judicial Notice, filed 

in this action in the trial court on April 3, 2015. None of these documents are relevant to 

our analysis. (Mangini, supra, 7 Cal.4th at p. 1063.)
6

 In September 2014, California enacted legislation intended to “ensure [the 

Department] completes a thorough, scientifically sound, and timely analysis of the effects

of neonicotinoids on pollinator health.” (Legis. Counsel’s Digest, Assem. Bill No. 1789 

(2013-14 Reg. Sess.) Ch. 578, p. 96.) The Legislature’s findings noted agreement among 

scientists “that a combination of factors is to blame for declining pollinator health, 

including lack of varied forage and nutrition, pathogens and pests such as the Varroa 

mite, and chronic and acute exposure to a variety of pesticides.” (Ibid.) The Department 

has until July 1, 2018, to issue a determination with respect to its neonicotinoid 

reevaluation. (Food & Agr. Code, § 12838, subd. (a).) Within two years of making its 

determination, the Department must “adopt any control measures necessary to protect 

pollinator health.” (Food & Agr. Code, § 12838, subd. (b)(1).)

The Department’s Public Reports for Amended Labels for Dinotefuran 20SG and 

Venom Insecticide

On January 17, 2014, the Department released a public report for its proposed 

decision to approve an amended label for Venom Insecticide. The amendment sought to 

expand the product’s use to additional types of crops (e.g., fruiting vegetables) and to 

allow its use in increased quantities.

On January 24, 2014, the Department released a public report for its proposed 

decision to approve an amended label for Dinotefuran 20SG. The label amendment 

sought to allow Dinotefuran 20SG to be used on additional crops (e.g., onions, peaches 

and nectarines) and to add pollinator protection language. 

In each of the reports, the Department stated it “evaluated the new labels for their 

potential to create adverse environmental effects to human health, water, air, and nontarget species (checklist). After review of the new labels for the above-identified 

registered products, [the Department] has determined that use of each product in a 

manner consistent with its new label will have no direct or indirect significant adverse 

environmental impact, and therefore no alternatives or mitigation measures are proposed 

to avoid or reduce any significant effects on the environment.” 
7

Earthjustice (PANNA’s counsel here) and Dr. Eric C. Mussen of the University of 

California at Davis submitted comments during the review process. Dr. Mussen, 

focusing on the Venom Insecticide report, commented on the proposed new label’s lack 

of warning of the potential risk of honey bees to consume dinotefuran in “chemigation 

water” and in contact with field applications. Earthjustice’s comments were more 

extensive and expressed concern that expanded authorized use of both pesticides would 

have a profound and adverse impact on honey bees.

In June 2014, the Department evaluated the environmental concerns expressed by 

Dr. Mussen and Earthjustice. The Department stated it “performed a thorough scientific 

analysis of the label expansions for the products . . . . [The Department] has determined 

that all identified potential adverse environmental effects associated with the use of the 

products have been mitigated and the product’s label instructions provide the necessary 

environmental protections. Therefore, approving the proposed label amendments does 

not represent additional risk to pollinators. Data indicate that neonicotinoids are acutely 

toxic to honey bees and other pollinators; however, [the Department] does not yet have 

sufficient scientifically robust data to support a regulatory action to implement additional 

mitigation measures, over and above current label restrictions.” The Department joined 

its comments with notice of its final decision to approve the label amendments for both 

Dinotefuran 20SG and Venom Insecticide. 

PANNA’s Challenge to Department Approvals

PANNA challenged the decisions in a petition for writ of mandate and complaint 

for declaratory and injunctive relief seeking an order “directing DPR to set aside its 

approval of Venom Insecticide and Dinotefuran 20SG pending the agency’s reevaluation 

of neonicotinoids and compliance with CEQA.” PANNA asserted several CEQA

violations. It claimed the Department abused its discretion when it found the label 

amendments had no significant environmental effect; it failed to analyze the direct, 

indirect, and cumulative impacts of the new labels; and it failed to analyze project 
8

alternatives.2 PANNA asked for “permanent injunctive relief prohibiting [the 

Department] from registering any neonicotinoid pesticide product or any other pesticide 

product that is toxic to honey bees, or from approving amended labels or registering new 

uses for existing neonicotinoids.” The trial court denied relief and entered judgment in 

the Department’s favor. PANNA appealed.

DISCUSSION

A. Standard of Review

Both parties agree that we “review[] the agency’s action, not the trial court’s 

decision.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho 

Cordova (2007) 40 Cal.4th 412, 427 (Vineyard Area).)

The parties also agree that our review of the Department’s action for compliance 

with CEQA “shall extend only to whether there was a prejudicial abuse of discretion.” 

(Pub. Resources Code, § 21168.5.) Such an abuse “is established if the agency has not 

proceeded in a manner required by law or if the determination or decision is not 

supported by substantial evidence.” (Pub. Resources Code, § 21168.5.)

This “statutory language has been interpreted as classifying abuses of discretion 

into two types of agency error—namely, legal error (the failure to proceed in the manner 

required by law) and factual error (making findings that are not supported by substantial 

evidence). [Citation] [¶] Each type of error is subject to a different standard of judicial 

review.” (POET, LLC v. Air Resources Board (2013) 218 Cal.App.4th 681, 710–711

(POET).) For this reason, “a reviewing court must adjust its scrutiny to the nature of the 

alleged defect, depending on whether the claim is predominantly one of improper

procedure or a dispute over the facts.” (Vineyard Area, supra, 40 Cal.4th at p. 435.) 

When the claim is legal error, we conduct an independent review to determine whether 

 

2

In its fourth cause of action, PANNA asserted a violation of the Food & 

Agricultural Code for the Department’s alleged failing to conduct the neonicotinoid 

reevaluation in a timely manner. Based on the 2014 enactment of Food and Agricultural 

Code section 12838, subdivision (a), which established the timeline for the Department’s 

completion of the reevaluation, PANNA dismissed this cause of action without prejudice. 

PANNA confirms this cause of action is not part of this appeal.
9

the agency proceeded in the manner required by law. (Id. at p. 426.) On the other hand, 

when reviewing an agency’s factual determination for error, we apply the substantial 

evidence standard. (Ibid.)

B. CEQA’s Application to the Department’s Decisions

Before we can determine whether the Department violated CEQA, we must decide 

the extent to which CEQA applies to the Department’s decisions to approve pesticide 

labeling. 

“CEQA is a comprehensive scheme designed to provide long-term protection to 

the environment. [Citation.] In enacting CEQA, the Legislature declared its intention 

that all public agencies responsible for regulating activities affecting the environment 

give prime consideration to preventing environmental damage when carrying out their 

duties. [Citations.] CEQA is to be interpreted to ‘afford the fullest possible protection to 

the environment within the reasonable scope of the statutory language.’ ” (Mountain 

Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 112 (Mountain Lion).) 

In general, CEQA “requires various state and local governmental entities to submit 

environmental impact reports before undertaking specified activity. These reports 

compel state and local agencies to consider the possible adverse consequence to the 

environment of the proposed activity and to record such impact in writing.” (Friends of 

Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 254–255, disapproved on other 

grounds in Kowis v. Howard (1992) 3 Cal.4th 888.) “Under CEQA, the ‘lead agency . . . 

is responsible for conducting an initial study of the project to determine whether it may 

have a significant effect on the environment. If it is found that the project will have no 

significant effect on the environment, a negative declaration is prepared, describing the 

project and indicating that it will have no significant effect.’ [Citation.] On the other 

hand, if the initial study indicates that the project may have a significant effect on the 

environment, the lead agency must prepare an [environmental impact report (EIR)]. . . . 

The EIR must include a detailed statement concerning the environmental effects, 

alternatives and other relevant factors concerning the project.” (Committee for a 
10

Progressive Gilroy v. State Water Resources Control Bd. (1987) 192 Cal.App.3d 847, 

856–857.)

Pursuant to Public Resources Code section 20180.5, state regulatory programs 

which meet certain environmental requirements and are certified by the Secretary of the 

Resources Agency are exempt from some of the usual CEQA requirements. (Pub. 

Resources Code, § 21080.5.) There is no mandate for such programs to prepare initial 

studies, negative declarations, and EIRs. (Cal. Code Regs., tit. 14, § 15250.)3 Public 

Resources Code section 21080.5, subdivision (a) states that when a certified program 

requires environmental documentation to be submitted in support of certain activities “the

plan or other written documentation may be submitted in lieu of the environmental 

impact report required by this division.” (Pub. Resources Code, § 20180.5, subd. (a).) 

Accordingly, a certified program may use other documents which “are considered the 

‘functional equivalent’ of documents CEQA would otherwise require” (City of Arcadia v. 

State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1422 (City of Arcadia))

and which serve as “substitute document[s] for the normal environmental review papers. 

[Citation.]” (Ross v. California Coastal Com. (2011) 199 Cal.App.4th 900, 930–931

(Ross).) “The rationale for this rule is to avoid the redundancy that would result if 

environmental issues were addressed in both program-related documents and an EIR.” 

(POET, supra, 218 Cal.App.4th at p. 710.)

In 1979, the Secretary of the Resources Agency certified the Department’s 

regulatory program related to the “registration, evaluation, and classification of 

pesticides.” (Californians for Alternatives to Toxics v. Department of Pesticide 

Regulation (2006) 136 Cal.App.4th 1049, 1059 (Californians for Alternatives).) The 

Code of Regulations identifies the Department’s pesticide program as one “certified . . . 

 

3 Title 14, section 15000 et seq. of the California Code of Regulations codifies the 

CEQA Guidelines, the regulations for the implementation of CEQA authorized by the 

Legislature (Pub. Resources Code, § 21083) and “prescribed by the Secretary of 

Resources to be followed by all state and local agencies in California in the 

implementation of [CEQA].” (Cal. Code regs., tit. 14, §§ 15000 et seq.)
11

as meeting the requirements of Section 21080.5.” (Cal. Code Regs., tit. 14, § 15251, 

subd. (i).) “The Legislature found certification warranted, in part, because the 

‘preparation of environmental impact reports and negative declarations for pesticide 

permits would be an unreasonable and expensive burden on California agriculture and 

health protection agencies.’ ” (Californians for Alternatives, supra, 136 Cal.App.4th at p. 

1059.)

Elements of the Department’s certified program can be found in title 3 of the 

California Code of Regulations, section 6254, which describes the documentation the 

Department must prepare for a registration decision. (Cal. Code of Regs., tit. 3, § 6254.) 

This public report must include “a statement of any significant adverse environmental

effects that can reasonably be expected to occur, directly or indirectly, from 

implementing the proposal, and a statement of any reasonable mitigation measures that 

are available to minimize significant adverse environmental impact.” (Cal. Code of 

Regs., tit. 3, § 6254.) It must also contain “a statement and discussion of reasonable 

alternatives which would reduce any significant environmental impact.” (Cal. Code of 

Regs., tit. 3, § 6254.)

PANNA and the Department disagree on what the exemption from CEQA means, 

and the import of the Department’s processes for environmental review of the pesticide 

label amendments for Dinotefuran 20SG and Venom Insecticide. Notwithstanding the 

certification and exemption from formal CEQA requirements, PANNA contends the 

Department’s review must still comply with CEQA’s policy goals and substantive 

standards. Because it operates a certified regulatory program, the Department contends 

its environmental documents serve as the “functional equivalent” of CEQA documents 

and are otherwise exempt from CEQA’s substantive requirements. Moreover, it contends 

that certification of its pesticide program represents a determination that its own 

environmental review procedures were adequate and that CEQA compliance must be 

measured against these procedures, with which it has complied. 
12

While the Department correctly states its program documents may be used in lieu 

of the documents normally prepared under CEQA, it goes too far in asserting its 

regulatory program “is exempt from the substantive portions of CEQA.”

The plain language of Public Resources Code section 21080.5 makes the limited 

scope of the exemption apparent. Subdivision (c) identifies the specific CEQA 

provisions from which certified programs are exempt: “A regulatory program certified 

pursuant to this section is exempt from Chapter 3 (commencing with Section 21100), 

Chapter 4 (commencing with Section 21150), and Section 21167, except as provided in 

Article 2 (commencing with Section 21157) of Chapter 4.5.” (Pub. Resources Code, §§ 

21080.5, subd. (c).) 

The CEQA Guidelines also dissuade us from the broad exemption the Department 

urges for certified programs. The same CEQA Guideline which confirms that certified 

regulatory programs are “exempt from the requirements for preparing EIRs, negative 

declarations, and initial studies” immediately explains, “A certified program remains 

subject to the other provisions in CEQA such as the policy of avoiding significant adverse 

effects on the environment where feasible.” (Cal. Code regs., tit. 14, § 15250, italics

added.) 

The California Supreme Court has explained the limits of the certified-program 

exemption. In Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215 (Sierra Club), 

the Board of Forestry approved two timber harvest plans (THPs) for certain old-growth 

forests, through its certified regulatory program for timber harvesting operations, after

finding no significant adverse effect on old-growth dependent species. (Id. at p. 1219.) 

The Supreme Court concluded the board abused its discretion when it evaluated and 

approved the THPs on the basis of a record that lacked information that other involved 

agencies had deemed necessary regarding the presence of old-growth dependent species. 

(Id. at p. 1220.) The Court found the board had an obligation imposed by CEQA to 

collect such information, without which it could not identify the environmental impacts 

of a project or carry out its obligation to protect wildlife. (Id. at p. 1236.) The Court 

rejected the lumber company’s argument that timber harvesting was exempt from CEQA 
13

because it was a certified regulatory program, explaining, “Our conclusion rests on the 

fundamental assumption that in approving [THPs], the board must conform not only to 

the detailed and exhaustive provisions of the [applicable regulations], but also to those 

provisions of CEQA from which it has not been specifically exempted by the 

Legislature.” (Id. at p. 1228.) It concluded, “Section 21080.5 compels instead the 

conclusion that timber harvesting in this state is exempt only from chapters 3 and 4 of 

CEQA and from section 21167 of that act.” (Id. at p. 1231.)

The decision in Sierra Club reinforced an earlier decision reached by the First 

District in Environmental Protection Information Center, Inc. v. Johnson (1985) 170 

Cal.App.3d 604 (EPIC), which explained the limits of the exemption granted to certified 

programs. EPIC stated, “Chapters 3 and 4 are in large part procedural elements of the 

EIR process. A certified program under section 21080.5 is logically exempted from their 

coverage as such programs provide an alternative to an EIR. Section 21167 is 

specifically geared to the machinery of the EIR process, and the application of any of its 

provisions to the THP approval process would be superfluous. Section 21080.5 contains 

its own time limitation for judicial action challenging a decision made under a 

functionally equivalent regulatory program. The logic of exempting these sections from 

the process declared to be an acceptable alternative to EIR preparation is apparent.” (Id. 

at pp. 617–618.) By making these specific exemptions, the EPIC court found “the 

Legislature has manifested an intent to retain the applicability of the other provisions of 

CEQA and of the Guidelines, particularly the substantive criteria and the specific aspects 

of environmental effect that must be evaluated before a project may proceed. . . . [¶] . . . 

[¶] While section 21080.5 may allow the industry to prepare abbreviated project plans 

instead of full-blown EIRs, it does not except the industry from adhering to the broad

policy goals of CEQA as stated in section 21000, and to CEQA’s substantive standards 

designed to fulfill the act’s goal of long-term preservation of a high quality environment 

for the citizens of California. [Citations.]” (Id. at pp. 618, 620.) EPIC clarifies that 

“[n]othing in section 21080.5 supplies a basis for concluding that the Legislature 

intended the section to stand as a blanket exception from CEQA’s thorough statutory 
14

scheme and its salutary substantive goals.” (Id. at p. 618.) The court held, “[E]xcept for 

the specific exemptions discussed, CEQA and its substantive criteria for the evaluation of 

a proposed project’s environmental impact apply.” (Id. at p. 620.)

We must reach the same conclusion as Sierra Club and EPIC that the 

Department’s pesticide registration program is exempt only from CEQA chapters 3 and 4 

and from Public Resources Code section 21167. Otherwise, the Department’s program—

and the environmental review documents it prepares—remain subject to the broad policy 

goals and substantive standards of CEQA not affected by the limited exemption set forth 

in section 21080.5, subdivision (c). (See POET, supra, 218 Cal.App.4th at p. 714; City of 

Arcadia, supra, 135 Cal.App.4th at p. 1422.) 

To support its argument that adhering to its own certified environmental review 

process is enough to satisfy CEQA, the Department embraces the finding in Californians 

for Alternatives, supra, 136 Cal.App.4th 1049, that “the Department’s compliance with 

applicable statutes and regulations constitutes CEQA compliance.” (Id. at p. 1067.) 

However, Californians for Alternatives concerned a CEQA challenge related to the 

Department’s procedure for annually renewing registered pesticides and whether the 

Department had to annually reopen the review for public comment as part of the renewal 

process. (Id. at p. 1055) Neither CEQA nor the Department’s regulations required the 

Department to do so. (Id. at p. 1066.) But this case concerns the adequacy of the 

Department’s environmental review documents under both the certified program’s 

regulations and the substantive requirements of CEQA. Notably, even Californians for 

Alternatives acknowledged the certification of a regulatory program amounted to an 

“exempt[ion] from several CEQA procedural requirements.” (Id. at p. 1067, italics

added.) The Californians for Alternatives court did not address CEQA’s substantive 

requirements, nor does it bear on those substantive requirements at issue in this appeal. 

The Department’s reliance on Mountain Lion, supra, 16 Cal.4th 105, is also 

unavailing. The Department contends PANNA’s position directly conflicts with 

Mountain Lion, which recognized that a certified program’s environmental 

documentation serves as a functional equivalent of an EIR. (Id. at p. 113.) Our 
15

conclusion does not diminish the significance of environmental review documents from 

certified programs as functionally equal to an EIR, nor does it require the Department to 

prepare full EIRs for every action it takes. Rather, consistent with statutory language, the 

Department’s environmental review is not a “blanket exemption” from CEQA, and it 

may not be relieved of CEQA’s substantive requirements to thoroughly evaluate specific 

environmental effects before it approves an activity. Even the Supreme Court in 

Mountain Lion recognized “[a]n agency operating pursuant to a certified regulatory 

program must comply with all of CEQA’s other requirements.” (Id. at p. 114, italics

added.)

C. The Department’s Compliance with CEQA’s Substantive Requirements

Since the Department’s certified regulatory program remains subject to the broad 

policy goals and substantive requirements of CEQA, we next address whether the 

Department’s public reports approving the pesticide label amendments comply with those

requirements and the other content requirements for environmental documentation from a

certified program. PANNA identifies multiple deficiencies in the Department’s review.

Although the Department may prepare abbreviated environmental review documents that 

serve as the functional equivalent of what CEQA would normally require, its review 

remains subject to CEQA’s policy goals and substantive standards. To determine 

whether the Department’s public reports were adequate, we turn to the statutes and 

regulations containing the policy goals, substantive standards, and content requirements 

for a certified program’s environmental documents.

CEQA’s broad policy goals are set forth in Public Resources Code sections 21000

through 21006. Many of the goals are expressed in legislative findings and declarations

in very general terms. (E.g., Pub. Resources Code, § 21001 [“The Legislature . . . 

declares that it is the policy of the state to: [¶] (a) Develop and maintain a high-quality 

environment now and in the future, and take all action necessary to protect, rehabilitate, 

and enhance the environmental quality of the state.”].) Several, however general, are 

relevant for this appeal. The substantive standards with which the Department’s 

documentation must comply are found throughout CEQA, outside of the exemptions in
16

CEQA Chapters 3 and 4 and Public Resources Code section 21167 (the procedural EIR). 

Public Resources Code section 21080.5 specifies the content required in environmental 

review documents prepared by a certified regulatory program. The CEQA Guidelines in 

section 15000 et seq. of title 14 of the California Code of Regulations provide additional 

content requirements for a certified program’s substitute documentation. Finally, the 

regulations adopted by the Department to secure certification appear in section 6254, title 

3 of the California Code of Regulations.

We will identify and apply the specific, relevant standards to the Department’s 

public reports to evaluate the sufficiency of the record supporting the Department’s 

review. We recognize substantial parts of PANNA and the Department’s briefing debate 

whether the Department’s public reports either embody the EIR process or have no 

resemblance to an EIR and are the equivalent of a negative declaration. As the court in 

Ross, supra, 199 Cal.App.4th 900, noted, “No doubt, there is an overlap between the 

requirements of a substitute document prepared for use in a certified regulatory program 

and those applicable to the preparation of an environmental impact report. We need not 

describe in detail how the requirements for a negative declaration or an environmental 

report, on one hand, and a certified program substitute document, on the other, differ or 

are the same.” (Id. at p. 933.) Rather, we “apply the statutory and regulatory 

requirements” specified in applicable CEQA statutory provisions and guidelines to 

determine the sufficiency of a certified program’s environmental review documents. (See 

id. at pp. 930–944.) When we do, we conclude the Department’s public reports for 

Dinotefuran 20SG and Venom Insecticide failed to comply with what CEQA requires for

certified regulatory program substitute documents.

4

 

4 PANNA claims additional deficiencies in the Department’s public reports which 

do not factor into our conclusion. In a footnote, PANNA argues that the Department 

failed to describe all the crops affected by the proposed use expansion and that it 

concealed the increased quantities of pesticide allowed to be used under the amended 

label for Venom Insecticide. PANNA also criticizes the Department’s “short response” 

to its “extensive written comments and accompanying scientific studies” as “not detailed 

enough.” As we have noted, “an agency operating pursuant to a certified regulatory 
17

Alternatives

PANNA contends the Department’s reports “perhaps most glaringly” failed to 

address any feasible alternative to registering the proposed new uses for Dinotefuran 

20SG and Venom Insecticide. We agree.

Our Supreme Court has held that in a review conducted under a certified 

regulatory program, “the public agency bears the burden of affirmatively demonstrating 

that, notwithstanding a project’s impact on the environment, the agency’s approval of the 

proposed project followed meaningful consideration of alternatives.” (Mountain Lion, 

supra, 16 Cal.4th at p. 134.) Indeed, consideration of alternatives is one of the hallmarks 

of CEQA analysis. Public Resources Code section 21001, subdivision (g) declares it is 

the policy of the state to “[r]equire governmental agencies . . . to consider alternatives to 

proposed actions affecting the environment.” (Pub. Resources Code, § 21001, subd. (g).) 

Public Resources Code section 21002 states that “it is the policy of the state that public 

agencies should not approve projects as proposed if there are feasible alternatives . . . 

available which would substantially lessen the significant environmental impacts of such 

projects, and that the procedures required by this division are intended to assist public 

agencies in systematically identifying . . . feasible alternatives . . . which will avoid or 

substantially lessen such significant effects.” (Pub. Resources Code, § 21002.) Content 

requirements for the documentation of a certified program must include “a description of 

the proposed activity with alternatives to the activity.” (Pub. Resources Code, § 21080.5, 

subd. (d)(3)(A).) This is reflected in the Department’s own program regulations which 

state that “[e]ach public report [prepared by the Department] shall also contain a 

 

program is subject only to certain abbreviated CEQA requirements.” (W.M. Barr & Co. 

v. South Coast Air Quality Management Dist. (2012) 207 Cal.App.4th 406, 408, fn. 6). 

Further, “[r]esponses to comments need not be exhaustive; they need only demonstrate a 

‘good faith, reasoned analysis.’ ” (Eureka Citizens for Responsible Government v. 

Eureka (2007) 147 Cal.App.4th 357, 378.) For substitute, abbreviated documents in lieu 

of the normal environmental review reports, the Department’s public reports’ summary 

descriptions of the proposed label amendments were sufficient, and the Department’s 

responses to public comments contained enough detail on significant environmental 

points raised to understand the extent of the Department’s analysis. 
18

statement and discussion of reasonable alternatives which would reduce any significant 

environmental impact.” (Cal. Code Regs., tit. 3, § 6254.) 

The CEQA Guidelines also call for analysis of alternatives in any functionally 

equivalent document prepared in a certified program: “The document used as a substitute 

for an EIR or negative declaration in a certified program shall include [¶] . . . [¶] [e]ither 

[¶] “(A) Alternatives to the activity and mitigation measures to avoid or reduce any 

significant or potentially significant effects that the project might have on the 

environment, or [¶] (B) A statement that the agency’s review of the project showed that 

the project would not have any significant or potentially significant effects on the 

environment and therefore no alternatives or mitigation measures are proposed to avoid 

or reduce any significant effects on the environment. This statement shall be supported 

by a checklist or other documentation to show the possible effects that the agency 

examined in reaching this conclusion.” (Cal. Code Regs., tit. 14, § 15252, subd. 

(a)(2)(A) & (B).) Thus, “a legally sufficient [environmental review document] must 

include some consideration of feasible alternatives even if the project’s significant 

environmental impacts will be avoided through mitigation measures.” (Friends of the 

Old Trees v. Department of Forestry & Fire Protection (1997) 52 Cal.App.4th 1383,

1395.) 

The record here fails to address these requirements on multiple levels. Based on

our review of the Department’s documentation, the Department made no effort to analyze 

alternatives to the expanded use of either Dinotefuran 20SG or Venom Insecticide. 

Neither report described any feasible alternatives to the proposed activities including a 

“no project” alternative. The Department’s public reports for both pesticides are clear 

that “no alternatives . . . [were] proposed,” and the Department’s final decision confirmed 

this. 

The Department responds that under its regulations, it need only consider 

alternatives when it has found significant environmental impacts. Indeed, the 

Department expressed this position in its reports: “After review of the new labels for the 

above-identified registered products, [the Department] has determined that use of each 
19

product in a manner consistent with its label will have no direct or indirect significant 

adverse environmental impact, and therefore no alternatives or mitigation measures are 

proposed to avoid or reduce any significant effects on the environment.” At oral 

argument, to further substantiate this determination, the Department referenced a 2010 

Mitsui-sponsored study in the record which concluded application of dinotefuran on 

cotton plants had no adverse effects on honeybees. We are nonetheless perplexed how

the Department could reach such a conclusion given since 2009 dinotefuran has been 

subject to reevaluation under the Department’s regulations, which require reevaluation

when a substance “may have caused, or is likely to cause, a significant adverse impact, or 

that indicate there is an alternative that may significantly reduce an adverse 

environmental impact.” (Cal. Code Regs., tit. 3, § 6220.) The reevaluation of 

neonicotinoids—including dinotefuran—continues.

To reconcile its reevaluation with its approvals of the Dinotefuran 20SG and 

Venom Insecticide label amendments, the Department contrasts the regulatory standard 

for reevaluation with the standard for determining when there are significant 

environmental impacts. Rejecting PANNA’s contention that the fair argument standard

the Department acknowledges applies to reevaluation also applies to its registration 

decisions, the Department states the term “fair argument” appears nowhere in its certified 

program regulations. It notes the phrase “may have a significant environmental effect” 

which provides the statutory basis for the fair argument standard for reevaluation appears 

nowhere in its regulations. The Department contends the specific language of its certified 

program regulations requires the Department only to discuss “any significant adverse 

environmental effect that can reasonably be expected to occur, directly or indirectly, 

from implementing the proposal.” (Cal. Code Regs., tit. 3, § 6254, emphasis added.) 

Like the trial court, we are not persuaded and see distinctions without a difference. The 

Department’s regulations which require review when a significant adverse effect “can 

reasonably be expected to occur” is not meaningfully different from CEQA regulations 

imposing a fair argument review when an activity “may have a significant environmental 

effect.” The Supreme Court has noted that under the CEQA Guidelines, “[I]t is 
20

appropriate for agencies to apply the fair argument standard in determining whether there 

is a reasonable possibility of a significant effect on the environment.” (Berkeley Hillside 

Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1115.) There is nothing 

distinctive about the specific language in the Department’s program regulations which 

give us reason to refrain from applying the fair argument standard to its pesticide 

registration decisions as well as its decisions to reevaluate pesticides previously 

approved.

But even if the Department’s finding of no significant impacts was meaningfully

derived, it does not excuse the Department from showing how it reached its conclusion. 

In such circumstances, “a checklist or other documentation to show the possible effects

that the agency examined in reaching this conclusion” is needed. (Cal. Code Regs., tit. 

14, § 15252, subd. (a)(2)(A) & (B).) Both public reports refer to a “checklist” evaluation 

of the label amendments for their potential to create adverse environmental impacts, but 

we found no checklist in the record and the public reports reveal nothing of the 

Department’s study. At oral argument, the Department’s counsel represented that 

Department staff used a checklist in their analysis but could not provide an explanation 

why the analysis was not in the record. Counsel for one of the real parties in interest

explained the absence of any physical checklist in the context of the more than 10,000 

pesticide registration applications the Department must process each year and the 

systematic, continuous nature of the Department’s review process which here was to

amend to two long-standing registrations to add uses familiar to the Department. We 

appreciate the tremendous task before the Department and recognize the utility and 

suitability of its certification. While that certification justifies the exemptions from 

CEQA’s procedural requirements, it does not excuse the Department from CEQA’s 

substantive requirements or explaining its analysis, as we have discussed, without an 

adequate record, even for amended label applications. This is especially the case here, 

where the Department decided to reevaluate the products several years after its original 

registration decisions on the concern such products may cause or are likely to cause 

significant environmental effects.
21

We also reject the Department’s contention that PANNA had the burden to 

identify feasible alternatives. “Under CEQA, the public agency bears the burden of 

affirmatively demonstrating that, notwithstanding a project’s impact on the environment, 

the agency’s approval of the proposed project followed meaningful consideration of 

alternatives.” (Mountain Lion, supra, 16 Cal.4th at p. 134.) The Department failed to 

demonstrate that it meaningfully considered alternatives to the requested label 

amendments, and its approval of the labels without having done so was an abuse of 

discretion.

Environmental Baseline

PANNA also contends the Department failed to assess baseline conditions with 

respect to actual use of neonicotinoids in California. We agree that the Department’s 

environmental documents lacked adequate baseline information.

Baseline commonly refers to the requirement that an EIR “must include a 

description of the physical environmental conditions in the vicinity of the project, as they 

exist at the time the notice of preparation is published.” (Cal. Code Regs., tit. 14, §

15125.) This description of existing environmental conditions ordinarily serves as the 

“baseline” for measuring the changes to the environment that will result from the project 

and for determining whether those environmental effects are significant. (Cal. Code 

Regs., tit. 14, § 15125.) Where a project involves ongoing operations or a continuation of 

past activity, the established levels of a particular use and the physical impacts thereof are 

considered to be part of the existing environmental baseline. (Communities for a Better 

Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 320–

323, 326–328 (Communities for a Better Environment).) “Neither CEQA nor the CEQA 

Guidelines mandates a uniform, inflexible rule for determination of the existing 

conditions baseline. Rather, an agency enjoys the discretion to decide, in the first 

instance, exactly how the existing physical conditions without the project can most 

realistically be measured, subject to review, as with all CEQA factual determinations, for 

support by substantial evidence.” (Id. at p. 328.)
22

Neither party has cited and we have found no reported decision that imposes 

CEQA baseline requirements on a certified regulatory program’s environmental 

documents. The Department never argues that its certified program is exempt from this 

requirement. But our conclusion that the Department’s abbreviated environmental 

documents must nonetheless assess baseline conditions is consistent with those CEQA 

policy goals and substantive standards from which certified regulatory programs are not 

exempt. (Cal. Code Regs. tit. 14, § 15250.) The policy underlying CEQA is set forth in 

part in Public Resources Code section 21002, which provides that “the procedures 

required [by CEQA] are intended to assist public agencies in systematically identifying 

both the significant effects of proposed projects and the feasible alternatives or feasible 

mitigation measures which will avoid or substantially lessen such significant effects.” 

(Pub. Resources Code, § 21002.) This policy is supplemented by CEQA’s guidelines, 

which identify as one of its basic purposes to “[i]nform government decision-makers and 

the public about the potential, significant environmental effects of proposed activities.” 

(Cal. Code Regs., tit. 14, § 15002, subd. (a)(1).) To give effect to the policy of 

identifying significant adverse effects of a proposal, an EIR “must delineate 

environmental conditions prevailing absent the project, defining a baseline against which 

predicted effects can be described and quantified.” (Neighbors for Smart Rail v. 

Exposition Metro Line Const. Authority (2013) 57 Cal.4th 439, 447.) The same need for 

a delineated baseline applies with equal force to a certified regulatory program’s 

environmental documents which also must assess any significant adverse environmental 

effects of a project. 

The Department says that it acknowledged and assessed baseline conditions and 

refers to its response letter to public comments which explain that no new significant 

impacts will result because “the uses are already present on the labels of a number of 

currently registered neonicotinoid containing products” The Department further refers us 

to hundreds of pages in the record regarding “the mountains of data about actual use” of 

the other registered neonicotinoids to demonstrate its analysis of a meaningful baseline.
23

While the Department has the discretion to decide how the baseline can be 

measured, it is not apparent from this mass of data that the Department ever conducted 

any such analysis. “The description of the environmental setting shall be no longer than 

is necessary to an understanding of the significant effects of the proposed project and its 

alternatives.” (Cal. Code Regs., tit. 14, § 15125, subd. (a).) Here, the entirety of the 

Department’s baseline assessment related to the expanded use of the two pesticides 

throughout California is a single statement in its public comments that notes “the uses are 

already present on the labels of a number of currently registered neonicotinoid containing 

products.” This general statement says nothing about the contours of the baseline relied 

upon by the Department. Whether the Department relied on actual existing uses of 

neonicotinoids or “hypothetical numbers,” as PANNA contends, and in what quantities is 

not clear. In the absence of any meaningful discussion of baseline conditions, we cannot 

conclude that possible significant environmental impacts resulting from the proposed 

label amendments were “adequately investigated and discussed.” (See Cal. Code Regs., 

tit. 14, § 15125, subd. (c).) Simply because the Department “had mountains of data about 

actual use” of other neonicotinoids does not mean it actually used that data to define a

baseline or to inform its conclusions, and there is nothing in the record that reflects it 

actually did so.

The Department says there is no requirement it had to “publicly identify or 

describe” its baseline under its regulations. We disagree. The Department’s regulations 

and its certified regulatory program do not exempt it from the policy goals and 

substantive standards of CEQA. One such policy is to “[i]nform government 

decisionmakers and the public about the potential, significant environmental effects of 

proposed activities.” (Cal. Code Regs., tit. 14, § 15002, subd. (a)(1).) By withholding 

adequate information on its selected baseline, the Department obscures any prospect that 

the public will be able to ascertain the significant effects of a proposed project or whether

a project will have no significant effects, as the Department concluded here. (See 

Communities for a Better Environment, supra, 48 Cal.4th at p. 328 [without comparing 

proper baseline conditions with conditions expected to be produced by a project, EIR 
24

“will not inform decision makers and the public of the project’s significant environmental 

impacts, as CEQA mandates”].) In this case, the Department’s reports contained no 

information on the baseline used for determining environmental impacts. This 

constituted a failure to proceed in the manner required by law.

Cumulative Impacts

A substantive CEQA requirement that is closely related to consideration of a 

meaningful project baseline is the assessment of a project’s cumulative impacts on the 

environment. This concept considers the incremental effect a proposed approval may 

have when viewed in connection with past, current or future approved projects. 

PANNA contends the Department’s documentation does not show that it considered

whether the impact to honey bees associated with registering new uses for the two 

insecticides would be cumulatively considerable. Again, we agree.

Whether a cumulative impacts analysis is required in a certified program’s

documentation is not as readily apparent as the requirement to consider reasonable 

alternatives. The broad policy goals of CEQA in Public Resources Code sections 21000 

et seq. do not refer to cumulative impacts. (See Pub. Resources Code, § 21000 et seq.) 

Section 21080.5, which sets forth the content requirements for certified program 

documentation, also makes no reference to a cumulative impacts analysis. (See Pub. 

Resources Code, § 21080.5.) And the Department’s certified program regulations are 

silent on this point. (See Cal. Code Regs., tit. 3, § 6254.) But case law makes clear such 

an analysis is an integral part of a program’s evaluation process.

In Laupheimer v. State of California (1988) 200 Cal.App.3d 440 (Laupheimer), 

the plaintiffs petitioned for a writ of mandate to prevent the logging of a neighboring 

property pursuant to a THP approved by the California Department of Forestry. (Id. at 

pp. 447–448.) The plaintiffs argued that the approvals were improper because the agency 

had not undertaken a cumulative impacts analysis, and the court reviewed the agency’s 

obligation to consider such cumulative impacts as part of its certified timber harvesting 

program. (Id. at p. 460.) 
25

Observing that Public Resources Code section 21080.5 and the Department’sown 

regulations imposed no obligation to review cumulative impacts (Laupheimer, supra, 200 

Cal.App.3d at pp. 461–462), the court identified the cumulative-impacts requirement in 

Public Resources Code section 21083, which provides that where “[t]he possible effects 

of a project are individually limited but cumulatively considerable” an evaluation shall 

“require a finding that a project may have a ‘significant effect on the environment.’ ” 

(Pub. Resources Code, § 21083, subd. (b)(2).) “ ‘[C]umulatively considerable’ means 

that the incremental effects of an individual project are considerable when viewed in 

connection with the effects of past projects, the effects of other current projects, and the 

effects of probable future projects.” (Pub. Resources Code, § 21083, subd. (b)(2).) 

Laupheimer found more references to cumulative impacts in the CEQA Guidelines, 

including the requirement that “significant” cumulative impacts be discussed in EIRs

(Laupheimer, supra, at p. 460) and a more detailed definition of the term: “ ‘Cumulative 

impacts’ refer to two or more individual effects which, when considered together, are 

considerable or which compound or increase other environmental impacts. [¶] (a) The 

individual effects may be changes resulting from a single project or a number of separate 

projects. [¶] (b) The cumulative impact from several projects is the change in the 

environment which results from the incremental impact of the project when added to 

other closely related past, present, and reasonably foreseeable probable future projects. 

Cumulative impacts can result from individually minor but collectively significant 

projects taking place over a period of time.” (Cal. Code Regs., tit. 14, § 15355.)

Noting the agency’s exemption from the EIR requirement as a certified regulatory 

program, Laupheimer asserted “the specific cumulative-impact provisions of the 

Guidelines cannot be said to be directly applicable” to its THP. (Laupheimer, supra, 200 

Cal.App.3d at p. 462.) But as the court in EPIC, supra, 170 Cal.App.3d at p. 625, had 

done, Laupheimer reasoned “that CEQA’s specific-cumulative impact provisions 

constitute recognition of the abstract significance of cumulative impacts to an 

environmental inquiry, and that in this abstract sense significant cumulative impacts must 

be considered in the course of any environmental inquiry subject to CEQA’s broad policy 
26

goals, whether or not also subject to CEQA’s EIR requirements.” (Laupheimer, supra, 

200 Cal.App.3d at p. 462.) It added, “We cannot quarrel with the proposition that [the 

agency] as it exercises its regulatory functions under the Act and Rules, must consider 

each timber harvesting plan in its full environmental context and not in a vacuum.” 

(Ibid.) 

Having determined that consideration of cumulative impacts was necessary and 

important in “seeing the entire environmental picture,” Laupheimer discussed the 

contours of such an analysis by a certified program. (Laupheimer, supra, 200 Cal.App.3d 

at p. 462) The court asserted the agency in every case had “to make at least a preliminary 

search for potential cumulative environmental effects, and if any such effect were 

perceived, at least a preliminary assessment of its significance.” (Id. at pp. 462–463.) In 

circumstances disclosing “one or more significant potential cumulative effects, then [the 

agency] would be obliged to give careful consideration to those effects in determining

whether . . . to approve the . . . plan.” (Id. at p. 463.) Such an analysis requires the 

agency to “look[] for and in some reasonable manner assess[] potential cumulative 

environmental effects, and . . . [give] sufficient consideration to any such effect it should 

reasonably have considered significant.” (Id. at p. 466.) Because the agency had not

considered the potential cumulative effects of the timber harvesting plan, Laupheimer 

concluded there was an abuse of discretion. 

Here, the Department also failed to explain its analysis of the cumulative impacts

of registering new uses for the pesticides in the context of the Department’s past, present, 

and future decisions regarding neonicotinoid use in California. Neither the public reports 

or the final decision contained cumulative impacts analysis. The single record reference 

we found to such an analysis appears in the Department’s May 2014 response to 

Earthjustice, noting in conclusory fashion that the “crops added to the two dinotefuran 

products [at issue here] will not result in new significant direct, indirect and cumulative 

impacts to honeybees because the uses are already present on the labels of a number of 

currently registered neonicotinoid containing products.” 
27

But “the cumulative impact analysis must be substantively meaningful.” (Joy 

Road Area Forest and Watershed Assn. v. California Dept. of Forestry & Fire Protection

(2006) 142 Cal.App.4th 656, 676 (Joy Road).) “ ‘ “A cumulative impact analysis which 

understates information concerning the severity and significance of cumulative impacts 

impedes meaningful public discussion and skews the decisionmaker’s perspective 

concerning the environmental consequences of the project, the necessity for mitigation 

measures, and the appropriateness of project approval. [Citation.]” [Citation.] [¶] While 

technical perfection in a cumulative impact analysis is not required, courts have looked 

for “adequacy, completeness, and a good faith effort at full disclosure.” [Citation.]’ 

[Citation.]” (Ibid.) Even under the more relaxed expectation for such an analysis 

described by Laupheimer, the Department’s one-sentence response lacked facts and 

failed to provide even a brief explanation about how the Department reached its 

conclusion. 

This is not surprising given the Department’s approach appears to have been to 

simply put off altogether considering the cumulative effects of approving additional and 

increased uses of dinotefuran-containing pesticides until the reevaluation is complete. 

The Department revealed as much in its response to Earthjustice when it stated, “The 

determination of whether the use of neonicotinoid products is resulting in adverse effects 

that require additional mitigation will be addressed by the reevaluation. The two 

amended dinotefuran products are already included in [the Department’s] evaluation.” 

The promise of more analysis to come following the conclusory explanation here simply 

does not measure up to CEQA’s mandate that relevant information on the effects of a 

project be made available as soon as possible and presented in a way that is useful to 

decisionmakers and the public. (Pub. Resources Code, §§ 21001, subd. (b), 21003.1, sub. 

(b).)5

 

5 The Department’s failure to meaningfully consider cumulative effects at this 

juncture strikes us as a serious misstep, as its consideration of cumulative effects seems 

critical given past, current, and probable future approvals of neonicotinoid products. We 

note that in 2012 and 2013, during the Department’s ongoing neonicotinoid reevaluation, 
28

The Department did not proceed as required by law and abused its discretion when 

it approved the amended labels without considering the cumulative effects of its decision.

Recirculation

Public Resources Code section 21003.1, subdivision (b) provides that

“[i]nformation relevant to the significant effects of a project, alternatives, and mitigation 

measures which substantially reduce the effects shall be made available as soon as 

possible by lead agencies, other public agencies, and interested persons and 

organizations.” (Pub. Resources Code, § 21003.1, subd. (b).) Further, section 21092.1 

also provides, that “[w]hen significant new information is added to an environmental 

impact report after notice has been given . . . and consultation has occurred . . . but prior 

to certification, the public agency shall give notice again . . . and consult again . . . before 

certifying the environmental impact report.” (Pub. Resources Code, § 21092.1.) In Joy 

Road, supra, 142 Cal.App.4th 656, the court held the certified regulatory program 

exemption from CEQA requirements did not extend to these recirculation provisions. 

(Id. at p. 668.)

However, “[r]ecirculation based on the addition of new information after the close 

of the public comment period is not required unless that information is ‘significant.’ 

[Citation.] The information is not considered significant unless the document ‘is changed 

in a way that deprives the public of a meaningful opportunity to comment upon a 

substantial adverse environmental effect of the project or a feasible way to mitigate or 

 

the Department “issued twelve final decisions which either registered new agricultural 

products containing neonicotinoid active ingredients or registered label amendments for 

existing products containing neonicotinoid active ingredients,” which either added new 

crop sites or new target pests for the neonicotinoid product. One expert report concluded 

that “annually increasing use of neonicotinoids may be playing a role in driving [bee] 

declines.” We also reject any Department effort to minimize cumulative impacts of its 

approvals based on the presence of other products on the market for the same crops. 

“Focusing on the de minimis effect in absolute terms isolates the effect individually, and 

this runs counter to the combined approach that CEQA cumulative impacts law requires.” 

(Communities for a Better Environment v. California Resources Agency (2002) 103 

Cal.App.4th 98, 121.)
29

avoid such an effect (including a feasible project alternative) that the project’s proponents 

have declined to implement.’ [Citation.] ‘[R]ecirculation is not required where the new 

information added to the EIR “merely clarifies or amplifies [citations] or makes 

insignificant modifications in [citation] an adequate EIR.” [Citation.] On the other hand, 

recirculation is required, for example, when the new information added to an EIR 

discloses: (1) a new substantial environmental impact resulting from the project or from a 

new mitigation measure proposed to be implemented [citation]; (2) a substantial increase 

in the severity of an environmental impact unless mitigation measures are adopted that 

reduce the impact to a level of insignificance [citation]; (3) a feasible project alternative 

or mitigation measure that clearly would lessen the environmental impacts of the project, 

but which the project’s proponents decline to adopt [citation]; or (4) that the draft EIR 

was so fundamentally and basically inadequate and conclusory in nature that public 

comment on the draft was in effect meaningless [citation].” (Center for Biological 

Diversity v. California Dept. of Forestry & Fire Protection (2014) 232 Cal.App.4th 931, 

949.)

Here, in light of the Department’s pending neonicotinoid reevaluation, its initial 

public reports for Venom Insecticide and Dinotefuran 20SG were both so inadequate and 

conclusory that public comment on the draft was effectively meaningless. Neither 

analysis in the January 2014 public reports exceeded a few pages. As discussed, both 

reports referred to a “checklist” evaluation of the label amendments for their potential to 

create adverse environmental impacts, but no checklist accompanied the report or is 

found in the record. For both products, the Department reached the same conclusion that 

there would be no significant adverse environmental impacts if the products are used in a 

manner consistent with the labels. But the Department provided no analysis or 

explanation to show how it reached that conclusion. Further, it made no attempt to 

discuss this conclusion in the context of its decision to reevaluate neonicotinoids on the 

basis that they “may have caused, or [are] likely to cause, a significant adverse impact, or 

that indicate there is an alternative that may significantly reduce an adverse 

environmental impact.” (Cal. Code Regs., title 3, § 6220.) As analyzed above, neither 
30

report described alternatives to the proposed activities nor did they include any discussion 

of an environmental baseline or an assessment of cumulative impacts. Given the 

Department refrained from explaining its decision until it responded to public comments, 

recirculation was required to allow meaningful public comment directed at the rationale 

for its decision.

DISPOSITION

The judgment denying PANNA’s writ of mandate is reversed. The judgment is 

remanded to the superior court with instructions to issue a writ of mandate directing the

Department to rescind its June 13, 2014 approval of the Dinotefuran 20SG and Venom 

Insecticide label amendments.
31

_________________________

Siggins, J.

We concur:

_________________________

McGuiness, P.J.

_________________________

Pollak, J.

Pesticide Action Network North America v. California Dept. of Pesticide Regulation, 

A145632
32

Trial Court: Alameda County Superior

Court

Trial Judge: Hon. George C. Hernandez, Jr.

Counsel:

Earthjustice, Gregory C. Loarie, Tamara T. Zakim, Stacey Putnam Geis for Appellants.

Vic Sher Law, Victor M. Sher for Pollinator Stewardship Council as Amicus Curiae on 

behalf of Appellants.

Kamala D. Harris, Attorney General, Robert W. Byrne, Senior Assistant Attorney 

General, Gaving G. McCabe, Supervising Deputy Attorney General, Marc N. Melnick, 

Deputy Attorney General for Respondents California Department of Pesticide 

Regulation, Brian H. Leahy, and Ann N. Prichard.

Kahn, Soares, & Conway, George H. Soares, Ann M. Grottveit for Respondents 

California Citrus Mutual, California Fresh Fruit Association, Western Agricultural 

Processors Association, California Cotton Ginners and Growers Association, Western 

Plant Health Association, and CropLife America.

Quinn Emanuel Urquhart & Sullivan, J.D. Horton, Jonathan Cooper for Real Party in 

Interest Mitsui Chemicals Agro, Inc.

Dentons US, Stanley W. Landfair, Lawrence S. Ebner, E. Jacob Lubarsky for Real Party 

in Interest Valent U.S.A. Corporation.