Case 1:20-cv-10645-LJL Document 37 Filed 12/29/20 Page 1 of 38
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`12/29/2020
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`20-cv-10645 (LJL)
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`OPINION & ORDER
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`RURAL & MIGRANT MINISTRY, ALIANZA
`NACIONAL DE CAMPESINAS, EL COMITE DE
`APOYO A LOS TRABAJADORES AGRÍCOLAS,
`FARMWORKER ASSOCIATION OF FLORIDA,
`MIGRANT CLINICIANS NETWORK, PINEROS Y
`CAMPESINOS UNIDOS DEL NOROESTE, RURAL
`COALITION, UNITED FARM WORKERS, and
`UNITED FARM WORKERS FOUNDATION,
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`Plaintiffs,
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`-v-
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`---------------------------------------------------------------------- X
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`UNITED STATES ENVIRONMENTAL PROTECTION
`AGENCY and ANDREW WHEELER,
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`Defendants.
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`LEWIS J. LIMAN, United States District Judge:
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`Plaintiffs move for a temporary restraining order (“TRO”) and a preliminary injunction
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`enjoining a regulation of the Environmental Protection Agency (“EPA”), scheduled to be
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`implemented on December 29, 2020, from going into effect. Plaintiffs also move for a stay
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`pursuant to 5 U.S.C. § 705. For the following reasons, the TRO is granted and the Court will
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`stay the effective date of the challenged rule, until January 12, 2021, pursuant to 5 U.S.C. § 705,
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`pending a hearing on the application for a preliminary injunction.
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`A. Statutory Background
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`Congress passed the Federal Insecticide, Fungicide & Rodenticide Act (“FIFRA”) in
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`1947. 7 U.S.C. § 136, et seq. “As first enacted, FIFRA was ‘primarily a licensing and labeling
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`statute.’” N.Y. State Pesticide Coal., Inc. v. Jorling, 874 F.2d 115, 117 (2d Cir. 1989) (quoting
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`Case 1:20-cv-10645-LJL Document 37 Filed 12/29/20 Page 2 of 38
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`Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991 (1984)). The original version of FIFRA
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`“primarily dealt with licensing and labeling.” Bates v. Dow Agrosciences LLC, 544 U.S. 431,
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`437 (2005). “Under the original version of FIFRA, all pesticides sold in interstate commerce had
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`to be registered with the Secretary of Agriculture. The Secretary would register a pesticide if it
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`complied with the statute’s labeling standards and was determined to be efficacious and safe.”
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`Id.
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`In 1972, the statue was substantially revised through the adoption of the Federal
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`Environmental Pesticide Control Act. 86 Stat. 973 (“FEPCA”). As amended by the FEPCA,
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`FIFRA “was transformed from primarily a labeling law into a comprehensive scheme to regulate
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`the use, sale and labeling, of pesticides-partly through EPA registration of the substances,
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`including review, suspension and cancellation of registration.” Jorling, 874 F.2d at 117. “As
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`amended, FIFRA regulated the use, as well as the sale and labeling, of pesticides; regulated
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`pesticides produced and sold in both intrastate and interstate commerce; provided for review,
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`cancellation, and suspension of registration; and gave EPA greater enforcement authority.”
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`Bates, 544 U.S. at 437 (quoting Ruckelshaus, 467 U.S. at 991-92 (1984)).
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`FIFRA requires the EPA “[t]o the extent necessary to prevent unreasonable adverse
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`effects on the environment . . . by regulation [to] limit the distribution, sale, or use in any State of
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`any pesticide that is not registered under this subchapter.” 7 U.S.C. § 136a. “Unreasonable
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`adverse effects on the environment” are defined as “any unreasonable risk to man or the
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`environment, taking into account the economic, social, and environmental costs and benefits of
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`the use of any pesticide.” Id. § 136(bb).
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`B. Regulatory Background
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`Pursuant to its authority under FIFRA, the EPA has implemented measures to protect
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`workers in two primary ways: (1) through specific use instructions and restrictions on pesticide
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`product labeling; and (2) through the Agricultural Worker Protection Standard (“WPS”). 80 Fed.
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`Reg. 67,496, 67,500.
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`EPA adopted the WPS in 1974, after passage of the FEPCA, and revised the regulations
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`in 1992 and 2015. The WPS is a uniform set of requirements for farmworkers, pesticide
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`handlers, and their respective employers. Its purpose is “to expand protections against the risk of
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`agricultural pesticides without making individual product labeling longer and much more
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`complex.” Id. at 67,500. Its requirements are “generally applicable to all agricultural pesticides
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`and are incorporated onto agricultural pesticide labels by reference.” Id. The WPS provides a
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`comprehensive collection of pesticide management practices that apply to agricultural pesticide
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`use in crop production. Id. These requirements are “designed to reduce the risks of illness or
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`injury resulting from workers’ and handlers’ occupational exposures to pesticides used in the
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`production of agricultural plants on farms or in nurseries, greenhouses, and forests and also from
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`the accidental exposure of workers and other persons to such pesticides.” 40 C.F.R. § 170.1.
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`The WPS’s requirements are further intended “to reduce or eliminate exposure to pesticides and
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`[to] establish[] procedures for responding to exposure-related emergencies.” Id.
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`“Workers” protected by the WPS are individuals who are employed to “perform[]
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`activities relating to the production of agricultural plants on an agricultural establishment . . .”
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`40 C.F.R. § 170.3. “Handlers” are individuals employed “by an agricultural establishment or
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`commercial pesticide handling establishment,” who are, inter alia, “mixing, loading, transferring,
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`or applying pesticides”; “[d]isposing of pesticides or pesticide containers”; “[h]andling opened
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`containers of pesticides”; “[a]cting as a flagger”; “[c]leaning, adjusting, handling, or repairing
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`the parts of mixing, loading, or application equipment that may contain pesticide residues”; or
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`“[a]ssisting with the application of pesticides.” Id.
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`As revised in 1992, the WPS included two primary provisions for protection of nearby
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`individuals during pesticide application: (1) a prohibition on allowing or directing any worker to
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`enter or remain in a treated area; and (2) a general “do not contact” provision that stated that
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`“[t]he handler employer and the handler shall assure that no pesticide is applied so as to contact,
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`either directly or through drift, any worker or other person, other than an appropriately trained
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`and equipped handler.” 40 C.F.R. § 170.210(a).
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`C. The 2015 Regulation
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`When EPA promulgated the 1992 Rule, it estimated that approximately 10,000 to 20,000
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`incidents of physician-diagnosed pesticide poisonings occurred in the WPS-covered workforce
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`annually. That estimate was based on then-current data on occupational pesticide-related
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`incidents. 80 Fed. Reg. at 67,502.
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`In the intervening years until 2015, EPA continued to seek “to ensure that the [WPS]
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`provides the intended protections effectively and to identify necessary improvements.” Id. at
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`67,499. After meetings with diverse stakeholders, the EPA concluded that the protections of the
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`WPS were not sufficient to ensure safety. The EPA found that, despite the “do not contact”
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`provisions, workers and bystanders continued to suffer contact with pesticides. The EPA
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`estimated that number of physician-diagnosed pesticide poisonings remained between 1,810 and
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`2,950 incidents annually, and that many of these exposures were avoidable. Id. at 67,502.
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`One particular area of concern was spray drift, “the off-site movement through the air of
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`pesticide droplets or particles originating from pesticides applied as liquids or dry materials.” Id.
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`at 67,520. Spray drift can create risk for workers and bystanders outside of a treated area when
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`droplets or particles move outside the area being treated, during or after the pesticide application.
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`Id. The EPA found that “as much as 37% to 68% of acute pesticide-related illnesses in
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`agricultural workers are caused by spray drift.” 79 Fed. Reg. at 15,448; Compl. ¶ 32. It found
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`that another independent study examining 3,646 cases of acute pesticide illness determined that
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`the most common contributing factor was exposure to off-target pesticide drift. Id. at 15,448.
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`The EPA also cited a study which found that 14-24% of total occupational pesticide poisoning
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`could be attributed to off-target drift. Id. The study also found that over half of drift-related
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`cases were non-occupational. All of these studies were done in the period between 1992 and
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`2015, during which time the “do not contact” rule was in place.
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`Based on its conclusions that the existing protections of the WPS were insufficient to
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`protect workers, handlers, and bystanders from exposure to pesticides, the EPA issued a
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`proposed rule revising the WPA. Id. at 15,450. The EPA determined that there was “strong
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`evidence that workers and handlers may be exposed to pesticides at levels that can cause adverse
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`effects and that both the exposures and the risks can be substantially reduced” through more
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`protective regulations. Id. at 15,446. The EPA concluded that “experiences such as those of
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`workers having to move to get out of the way of the tractor that was applying pesticide . . . and
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`workers being directly sprayed confirm EPA’s position that additional protections are necessary
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`during pesticide applications on farms and in forests.” 80 Fed. Reg. at 67,522.
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`The proposed revisions to the WPS included a provision that would require a pesticide
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`handler to suspend spraying if an individual came within a specified distance of the area that was
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`being treated with pesticides. Id. The provision was intended to address the weaknesses and
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`failings of the “do not contact” rule. Id.
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`The EPA published the proposed rule for notice and comment. Commenters raised
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`logistical problems with the distance elements of the proposal. In particular, commenters were
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`concerned that a handler might not be able to see whether or not any person came near the
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`treated area at all times during a pesticide application. Id. In response to these concerns, the
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`EPA revised the requirements so that a handler was required to suspend application of pesticide
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`only if a person came within a specified distance of the application equipment. Id. In the final
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`rule, this area around the application equipment was designated the “application exclusion zone”
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`(“AEZ”). The AEZ was “essentially a horizontal circle surrounding the application equipment
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`that moves with the application equipment.” Id. Handlers are required to “immediately suspend
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`a pesticide application if any other worker or other person, other than an appropriately trained
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`and equipped handler involved in the application, is in the application exclusion zone.” CFR §
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`170.505(b).
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`As set forth in the final rule, the size of the AEZ depended upon the method of pesticide
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`application. As finalized, the AEZ extended 100 feet horizontally from the application
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`equipment when the pesticide is applied by: “(A) Aerially. (B) Air blast application. (C) As a
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`spray using a spray quality (droplet spectrum) of smaller than medium (volume median diameter
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`of less than 294 microns). (D) As a fumigant, smoke, mist, or fog.” Id. § 170.405(a)(1)(i-iii).
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`The AEZ would extend only 25 feet when spray quality was medium or larger (volume median
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`diameter of 294 microns or greater). Id. The EPA concluded that this distinction was warranted
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`by the fact that pesticide sprayed as larger droplets was less susceptible to drift. 80 Fed. Reg. at
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`67,523.
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`The EPA also concluded that the AEZ would extend beyond the boundaries of the
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`agricultural establishment. Id. at 67,524. The EPA offered three reasons for doing this: First, it
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`would “address[] more of the worker drift cases, where workers are within 100 feet of the
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`agricultural establishment.” Id. The EPA noted that “[o]ut of 17 incidents identified in the
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`comments, only one would have been prevented if the application exclusion zone was limited to
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`the boundaries of the agricultural establishment as provided in the proposed rule.” Id. Second,
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`“the existing requirement that the handler must assure the pesticide is applied in a way that does
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`not contact workers or other persons already extends beyond the boundary of the agricultural
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`establishment.” Id. Finally, “the application exclusion zone would extend a maximum of 100
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`feet beyond the boundary of an agricultural establishment only for the length of time it takes for
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`the equipment applying the pesticide to pass by, so this should not shut down roads or access
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`points for long periods of time.” Id.
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`During the comment period, some commenters objected to the AEZ provision on the
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`ground that the “do not contact” provision provided adequate protections for workers and
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`bystanders. Id. at 67,520-21. The EPA concluded that the “do not contact” provision—the
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`primary protection in the WPS for workers and bystanders outside of a treated area—was
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`insufficient to prevent people from being sprayed with pesticides. It explained:
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`EPA disagrees with the assertion that the “do not contact” requirements, along with
`the other protections on pesticide labels, are by themselves sufficient to protect
`workers and bystanders from being directly contacted by pesticides that are applied.
`First, many commenters cited incidents where people were directly exposed to
`pesticide applications, even if there was disagreement about how regularly these
`types of incidents happen. Second, EPA’s risk assessments and registration
`decisions are based on the premise that the WPS protections effectively prevent
`people (workers and bystanders) from being sprayed directly. In other words,
`incidents where workers or bystanders are sprayed directly result in people being
`exposed to pesticides in a way that is not considered in EPA’s risk assessments or
`registration decisions.
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` Id. at 67,521.
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`The AEZ provision went into full effect in January 2018.
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`D. The 2020 Regulation
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`On November 1, 2019, the EPA published a proposal to roll back provisions of 2015
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`Rule that related to the AEZ. 84 Fed. Reg. 58,666. According to the EPA, it had solicited
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`comments in the spring of 2017 on regulations that “may be appropriate for repeal, replacement
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`or modification” in accordance with Executive Order 13777, Enforcing the Regulatory Reform
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`Agenda. Id. at 58,668. Twenty-five commenters provided input on the AEZ provision pursuant
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`to the Executive Order, including “USDA, State pesticide regulatory agencies, State
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`organizations, an organization representing Tribal pesticide regulators, a local government
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`advisory committee, an agricultural coalition, farm bureau federations, growers, grower
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`organizations, farmworker advocacy organizations, a public health association, a retailer
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`organization and private individuals.” Id. Commenters raised concerns about “the ability of
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`states to enforce the requirement, . . . a need for clarity about how the requirement was intended
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`to work, . . . problems with worker housing near treated areas, and the perception of increased
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`burden on the regulated community.” Id. In response to comments received through the
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`Regulatory Reform Agenda process, EPA solicited feedback on the AEZ requirements from the
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`Pesticide Program Dialogue Committee (“PPDC”). In sum, according to the EPA, “[r]equests
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`from SLAs [i.e. State Lead Agencies] to clarify and simplify WPS AEZ requirements, together
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`with comments received through the Regulatory Reform Agenda process and input from the
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`PPDC, prompted EPA’s decision to develop this proposed rule.” Id.
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`The proposed rule made a number of revisions to the AEZ. First, it limited the AEZ to
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`the boundaries of the agricultural establishment on which the pesticides were being sprayed. Id.
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`at 58,668. Second, it revised the provision requiring handlers to suspend application of
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`pesticides when workers or other people were present in the AEZ to clarify that the application
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`could be resumed once no workers or other person remained in the AEZ. Id. Third, the EPA
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`proposed to eliminate the requirement that the AEZ extend for 100 feet when pesticides with
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`small droplet sizes are being sprayed, replacing it with an across-the-board AEZ of 25 feet for
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`droplets of all sizes. Id. Fourth, the EPA proposed to amend the AEZ requirements to allow
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`pesticide handlers to make or resume an application despite the presence of certain types of
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`individuals within the treated area or AEZ: (1) Appropriately trained and equipped handlers
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`involved in the application; (2) Persons not employed by the establishment in an area subject to
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`an easement that prevents the agricultural employer from temporarily excluding those persons
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`from that area; and (3) Owners of the agricultural establishment and their immediate family
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`members who remain inside closed buildings, housing, or shelters on the establishment. Id.
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`The EPA received 126 comments on the proposed rollback. 110 opposed the changes,
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`including plaintiffs in this action, while 16 commenters supported the changes. Commenters
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`supporting the rule noted “that [the] changes would result in improved enforceability and
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`compliance while maintaining other protections intended the ensure the safety of workers or
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`other persons from contact during pesticide applications.” 85 Fed. Reg. at 68,765.
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`Some commenters opposing the rule objected that the EPA, in formulating the 2020 rule,
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`had failed to justify the change in its position since it had promulgated the 2015 Rule. Id. at
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`68,766. “These commenters argued that the proposed rule rests on new conclusions based
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`substantially on the same evidence the agency considered when reaching the opposite
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`conclusions in 2015.” Id. These commenters further argued that it was arbitrary and capricious
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`for the EPA “to limit the AEZ without new evidence just five years after establishing the AEZ
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`with no explanation of why EPA’s assessment of those facts in 2015 was incorrect.” Id.
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`Commenters also challenged the EPA’s reliance on feedback solicited and received in three
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`venues: (1) Training and outreach to state pesticide regulatory agencies; (2) as part of EPA’s
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`“Regulatory Reform Agenda” efforts in 2017; and (3) two meetings of the Pesticide Program
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`Dialogue Committee (“PPDC”) in 2017. Id.
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`The EPA responded that the AEZ provisions were being altered because they were
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`unworkable and difficult to administer. Id. It asserted that it had received comments from state
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`regulatory authorities reflecting concerns about the AEZ’s complexity and its enforceability, and
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`“that it would be difficult for states to provide compliance assistance in the absence of clear
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`guidance from the Agency.” Id.
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`The EPA pointed to two guidance documents it had issued to attempt to clarify the AEZ
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`provision. The first, issued in April 2016, had indicated that pesticide applications that had been
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`suspended due to the presence of people in the AEZ could resume once a handler had taken
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`measures to ensure that those individuals would not be contacted by the spray. Id. at 68,766-67.
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`The EPA continued to hear from state regulatory agencies about enforcement challenges and
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`complexity of the AEZ provision. Id. at 68,767. In February 2018, the EPA issued new
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`guidance which “addressed the off-establishment AEZ by explaining what steps to take when
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`someone enters the AEZ that is located off the establishment, when and under what
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`circumstances handlers can resume pesticide applications that have been suspended, as well as
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`providing more detail about how to evaluate situations and what measures can be taken when
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`people are within the AEZ but off the establishment.” Id. The new guidance indicated that,
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`when a person who is located off the establishment enters the AEZ, the handler’s responsibility
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`is to suspend the application of the pesticide, to evaluate the situation to determine if she can
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`resume the application without contacting anyone, and only then to resume. The guidance also
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`indicated that a handler could resume pesticide application even if people beyond the boundary
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`of the agricultural establishment were within the AEZ, so long as the handler could “ensure that
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`the pesticide will not contact any persons that are in this portion of the AEZ area.” Id.
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`Environmental Protection Agency, Agricultural Worker Protection Standard (WPS) Application
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`Exclusion Zone (AEZ) Requirements Fact Sheet (Feb. 15, 2018) at 3-4. The EPA continued to
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`hear from state regulators who were concerned that the guidance conflicted with the text of the
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`regulation itself, and that they would be “on shaky ground were we to ignore the plain language
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`of the Standard and regulate based on interpretative guidance.” 85 Fed. Reg. at 68,767. The
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`EPA thus responded that the revised regulations were necessary in order to clarify the scope of
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`the AEZ provision. Id. at 68,769 (“Despite EPA’s best efforts to offer clarity and a workable
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`solution through guidance, incongruity remains between EPA’s interpretation of the “suspend”
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`requirement as a temporary measure until handlers take appropriate steps and how others may
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`interpret the language at 40 C.F.R. 170.505(b) to mean something more strict or permanent.”).
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`Other commenters, including Plaintiffs, provided evidence that pesticide exposures were
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`continuing to occur, including first-hand accounts of bystanders and farmworkers being sprayed
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`and, in some case, experiencing serious health impacts. Id. at 68,769. Commenters including
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`Plaintiffs also submitted evidence that the AEZ should be expanded, rather than eliminated,
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`because its current radius was not sufficient to protect workers from drift. Commenters asserted
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`that the EPA had correctly concluded in 2015 that the “do not contact” provisions were not
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`sufficient to protect safety and that the AEZ provision should be maintained. Id. at 68,768-69.
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`According to the commenters, the role of the AEZ was to “proactively protect[] against pesticide
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`poisoning by requiring the suspension of application before anyone is sprayed while in contrast
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`the “Do Not Contact” provision can be enforced only after contact with pesticides has occurred.”
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`Id. at 68,768. Commenters pointed to two separate incidents in California where fieldworkers on
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`a farm sought medical treatment after exposure to pesticides during an application that took place
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`less than 100 feet away on a neighboring farm. Id. at 68,768. In both cases, California, which
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`has state law requirements mirroring those of the 2015 Rule, issued administrative civil penalties
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`for the spray. Id.
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`In response to the concerns of the objecting commenters, the EPA justified its changes to
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`the AEZ on the ground that the “do not contact” rules, coupled with new training requirements
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`imposed by the 2015 Rule, were sufficient to protect workers and bystanders from pesticide
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`spray. Id. at 68,764-65. According to the EPA, bystanders would still be protected by the “do
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`not contact” provision of the WPS, because “[i]f a handler has any reason to believe that workers
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`or bystanders may be contacted by a pesticide during a pesticide application, the application
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`should not take place until either those individuals leave the area or the handler can take
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`measures to ensure that contact will not occur.” Id. at 68,765. As a result, the EPA concluded
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`that “the AEZ imposes burdens that are disproportionate to the need for the extra measure of
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`assurance the AEZ is intended to provide.” Id. at 68,768.
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`According to the EPA, the comments regarding the preventative benefits of the AEZ
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`provision reflected “a misplaced emphasis on creating easily proven violations, irrespective of
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`adverse effects.” Id. at 68,769. The EPA stated that it “is not aware of any AEZ violation
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`having been enforced without pesticide without contact [sic] occurring first, such as the two
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`cases in California.” Id. at 68,770. This fact, the EPA reasoned, provided further support for the
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`proposition that the “do not contact” provision was sufficient to provide worker safety. Id.
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`The Final Rule is scheduled to take effect December 29, 2020.
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`E. The Instant Litigation
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`Petitioners filed suit challenging three aspects of the Final Rule, alleging that the EPA
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`arbitrarily and capriciously promulgated them in violation of FIFRA. First, they challenge the
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`roll back of the provision of the 2015 Rule that requires the AEZ to apply off the property (the
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`“Boundary Provision”). Second, they challenge the Final Rule’s exception to the AEZ for
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`individuals who are not employees of the agricultural establishment and who are on an easement
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`on the property (the “Easement Provision”). Third, they challenge the roll back of the aspect of
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`the AEZ provision which mandates a 100-foot AEZ for pesticides sprayed in the form of small
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`droplets which are more susceptible to drift (the “Droplet Provision”).
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`F. The Parties
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`Plaintiffs are a group of non-profit and membership organizations each of which provides
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`services for, and advocates on behalf of, farmworking communities including in the areas of
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`education, healthcare, safety training, leadership development, labor organizing, immigration and
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`legal support, and policy advocacy. Dkt. No. 1 (“Compl.”) ¶¶ 10-19. The organizations vary in
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`the geographical territory in which they provide services and in their particular missions. Each
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`of the Plaintiffs, however, represents or provides services for farmworkers, and each is
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`dedicated, in part, to improving farmworker working and living conditions. Several of the
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`Plaintiff organizations have a particular focus on preventing the harms caused by pesticide
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`exposure.
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`RMM is a New York State non-profit organization that serves rural migrant communities
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`by supporting farmworkers that are advocating to improve their own working and living
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`conditions and administering educational programs for farmworkers and rural children. See
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`Compl. ¶ 10; Witt Decl. ¶¶ 2-3. Alianza is a national non-profit farmworker organization,
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`composed of 15 member organizations, that supports the development of leadership among
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`farmworking women through national organizing, public education and outreach, and federal
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`policy-advocacy. See Compl. ¶ 11; Trevino-Sauceda Decl. ¶ 2. CATA is a non-profit
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`farmworker organization operating in parts of New Jersey, Pennsylvania, and Maryland
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`dedicated to improving workers’ rights, workplace health and safety, immigrants’ rights, and
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`food justice. Compl. ¶ 12; Cully Decl. ¶¶ 1-2. Among other things, CATA provides safety
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`training to farmworkers, including about pesticide safety practices. Cully Decl. ¶¶ 5-6. FWAF
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`is a non-profit organization based in Florida that conducts programs and activities to support the
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`development of leadership and activism among low-income communities of color that are
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`disproportionately affected, among other things, by pesticide exposure and health issues. Compl.
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`¶ 13. MCN is a national non-profit organization with more than 10,000 constituent clinicians
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`who work in community health centers and other health care delivery sites to provide healthcare
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`for migrants, including farmworkers and those who live near farms. Compl. ¶ 14. “MCN’s
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`overarching goal is to improve the quality of health care and increase access to care for
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`immigrants and other underserved populations.” Liebman Decl. ¶ 4. Among MCNs services is
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`“clinician training to help clinicians recognize and identify illnesses resulting from exposure to
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`pesticides.” Id. ¶ 5. PCUN is a farmworker union in Oregon whose “mission is to empower
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`farmworkers to recognize and take action against systematic exploitation and all of its effects,”
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`Compl. ¶ 15; its programs include an initiative to combat harms caused by exposure to
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`pesticides, including through policy advocacy and litigation, Lopez Decl. ¶ 3, 6, 8. Rural
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`Coalition is a non-profit that advocates for farmers, ranchers, farmworkers, and rural
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`communities through policy advocacy, litigation, and direct services. Compl. ¶ 16; Picciano
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`Decl. ¶ 6. “The Rural Coalition’s farmworker member group represent workers whose work is
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`largely concentrated in the harvest of fresh fruits and vegetables” that are often treated with
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`“massive amounts of pesticides.” Id. ¶ 7. UFW is a national farmworker union with a
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`membership of over 45,000 that engages in labor organizing and policy advocacy. Compl. ¶ 17;
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`Romero Decl. ¶ 2-5. UFW Foundation is a sister organization to UFW. It serves over 100,000
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`farmworkers and low-income community members in Californa and Arizona and engages in
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`policy advocacy, immigration and legal representation, worker education and outreach
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`initiatives, and other direct services. Fernandez Decl. ¶ 1-4.
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`14
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`Case 1:20-cv-10645-LJL Document 37 Filed 12/29/20 Page 15 of 38
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`Each of the Plaintiff organizations serves workers on farms where pesticides are sprayed.
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`Several declarations filed in support of the instant motion contain testimony indicating a high
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`prevalence of pesticide exposure among farmworkers and residents in agricultural
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`communities—including among Plaintiffs’ members—and the harmful effects that result from
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`such exposure. For example, CATA “estimate[s] that about 30% of the workers [it] visits
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`experience some symptoms related to pesticide exposure—generally ranging from nausea,
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`headaches and skin rashes to occasional more severe symptoms,” including “cancer and
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`prolonged medical disability.” Culley Decl. ¶ 6, 11. Others also regularly report exposures that
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`occur from pesticide drift. See Lopez Decl. ¶ 5. (“Many of PCUN’s members have experienced
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`the effects of exposure to pesticides. These symptoms include headaches, dizziness, fatigue,
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`sleeplessness, nausea, and vomiting.”); Picciano Decl. ¶ 8 (“[w]e have heard of workers who
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`were directly sprayed with agricultural chemicals and suffered severe illness as a result,
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`including kidney disease and other serious diseases that affect them their entire lives and can
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`render workers unable to work. Our members also regularly report exposures that occur from
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`pesticide drift.”).
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`Plaintiffs’ declarations attest that while the effects from exposure vary, they are
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`sometimes devastating. For example, Mily Revino-Sauceda, the co-founder and Executive
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`Director of Alianza, declared:
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`[O]ne Florida farmworker woman suffered life-long injuries as a result of her
`pesticide exposure, ultimately losing her sight and experiencing severe kidney
`failure. She is now blind and on dialysis, her physical movements are severely
`limited, and she frequently suffers from headaches and dizziness. We have heard
`similar stories from women in different parts of the country including California,
`Arizona, New York, and Maryland. Some of these women were exposed to
`pesticides while they were pregnant and suffered miscarriages as a result of the
`exposure, or severe pregnancy complications. The vast majority of farmworker
`women who have been subject to pesticide exposure, were exposed to these
`pesticides through off-target pesticide drift. Too many members have experienced
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`15
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`Case 1:20-cv-10645-LJL Document 37 Filed 12/29/20 Page 16 of 38
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`short term effects such as eye and skin irritation, rashes, blisters, headaches, nausea,
`dizziness a