US Court considers latest bid to force EPA ban on chlorpyrifos

15:08 PM | August 6, 2020 | J R Pegg

The US Trump administration broke the law when it abandoned a US EPA plan to revoke food tolerances for chlorpyrifos and should be compelled to ban the insecticide, environmentalists, farmworker advocates and several states have told an appeals court. The plaintiffs submitted their demand to a three-judge panel of the US Court of Appeals for the Ninth Circuit last week.

The Agency has ample evidence that exposure at levels below the existing tolerances cause “permanent brain damage in children” and it cannot meet the underlying legal standard required under food safety law, said Earthjustice attorney Patti Goldman.

“When the EPA denies a petition to revoke tolerances, it must do so only when it finds the pesticide safe,” she told the panel during the remote hearing. “Here, EPA is leaving tolerances in place without finding chlorpyrifos is safe. That is in blatant violation of the statute.”

Lengthy dispute

The legal dispute stretches back to 2007 when the Natural Resources Defense Council (NRDC) and other environmentalists filed a petition with the EPA calling for the Agency to revoke food tolerances for chlorpyrifos, which had been revised a year earlier.

The petitioners urged the EPA to review new evidence of neuro-developmental harm from the organophosphate insecticide and argued that cumulative exposures posed undue risks to children and farmworkers.

After years of legal wrangling and scientific review, the EPA revised its risk assessment and in 2016 proposed granting the petition, citing evidence that cumulative exposures through food and drinking water exceeded safety limits set under the Federal Food, Drug and Cosmetic Act (FDCA).

But agricultural interests pushed back, questioning the science behind the EPA’s review and the concerns about health risks. US farmers use an estimated 5 million pounds (2,268 tonnes) of the insecticide on more than 50 crops, including almonds, apples, citrus fruit, maize and strawberries, and some have voiced concern about effective alternatives.

The pressure from farm groups and the pesticide industry gained traction with former EPA Administrator Scott Pruitt, who reversed course and denied the petition in March 2017.

NRDC and its allies, as well as New York, California and six other states, challenged Mr Pruitt’s order in court, alleging that the EPA had failed to issue the required safety finding under the FDCA to justify its decision not to issue the ban.

A Ninth Circuit panel agreed and ordered the Agency to cancel registrations and revoke food tolerances for chlorpyrifos within 60 days.
The Trump administration appealed, arguing that the lawsuit was invalid as the EPA had not yet responded to formal objections to the March 2017 order that denied the petition. In April 2019, an en-banc panel of the Ninth Circuit ordered the EPA to respond to those objections and issue a final decision within three months.

EPA Administrator Andrew Wheeler responded in July 2019 with a new order, rejecting the FDCA objections raised by the petitioners, including concerns about unsafe drinking water exposures and severe risk of neurological harm to children from the insecticide.

Mr Wheeler said that "despite years of study, the science addressing neuro-developmental effects remained unresolved”. Further evaluation of the science surrounding the safety of chlorpyrifos is warranted, Mr Wheeler said. But he concluded that review could be completed over the course of the registration review process for the insecticide — expected to be finished by 2022.
Back to court

Mr Wheeler’s order prompted the petitioners to return to the Ninth Circuit with a new complaint, reiterating their view that the EPA had failed to make the required safety finding.

“EPA’s order is illegal,” said New York Assistant solicitor general Frederick Brodie, who argued on behalf of his state as well as of California, Hawaii, Oregon, Massachusetts, Maryland, Vermont, Washington and the District of Columbia. Mr Brodie echoed Ms Goldman’s call for the panel to remand Mr Wheeler’s order with clear instructions to revoke the food tolerances for chlorpyrifos.

“EPA for the past 13 years has been playing for time and it has been delay after delay,” he told the Court. “Merely setting aside the order would not provide relief. It would leave chlorpyrifos tolerances in effect without a safety finding, leaving us essentially in the same place we are today.”

Statutory dispute

Arguing for the EPA, Department of Justice (DoJ) attorney Mike Walters said that the petitioners were misreading the statute.

The EPA is not required to issue a new safety finding to leave tolerances in effect, he said, adding that the FDCA does not compel such action “each and every time” that the Agency responds to a petition to revoke a tolerance. “In the petition context, the administrator never has to get to the question of whether the pesticide is unsafe,” Mr Walters said.

US Circuit Judge Jacqueline Nguyen noted that “this case has had a very long and tortured litigation history” and asked the DoJ attorney about possible remedies on remand.

Mr Walters responded that if the court remanded the order, it should not compel the EPA to take any specific further action as there was “conflicting evidence” about the safety of chlorpyrifos.  

“EPA has never made a finding in this case -- never -- that the existing tolerances are not safe and it is inaccurate to say that EPA made a series of unbroken findings that exposures below the level of tolerances cause neurological effects,” he said. “While EPA doesn’t dispute that chlorpyrifos can cause neuro-developmental effects, the question has always been at what level and what level of tolerances provide adequate protection.”

Ms Goldman responded that there was “no conflicting evidence” about the risks from chlorpyrifos or that the existing tolerances were inadequate.
“There are uncertainties about the particular exposure level but there are not uncertainties about the harm to children happening far below the tolerances,” she said, adding that failure to compel the Agency to act could mean “the delay may go on for many, many years”.   

Market forces

While the legal action surrounding chlorpyrifos remains unresolved, the legal and scientific controversy surrounding the insecticide has clearly impacted future use.

Three US states – California, Hawaii and New York – have moved to prohibit agricultural uses and the EU imposed a ban in January. Shortly after the EU announced its ban, the primary chlorpyrifos manufacturer – Corteva Agriscience – confirmed that it would cease production this year.