9th Circuit to EPA: Find Pesticide Safe or Ban It

The Ninth Circuit expressed impatience with the EPA’s continued delay in deciding whether to ban chlorpyrifos, which scientists say can harm young children’s development.

A farmworker gathers sweet potatoes in Mechanicsville, Virginia. Sweet potatoes are one of many crops that chlorpyrifos is used on. (Lance Cheun/USDA via Courthouse News)

(CN) — Aiming to conclude a 14-year regulatory saga, the Ninth Circuit ruled Thursday that the Environmental Protection Agency must find that residual amounts of a pesticide are completely safe for babies in utero, else completely ban it.

In a 2-1 majority, the Ninth Circuit panel held that the EPA delayed in making a decision on chlorpyrifos, which studies have shown to be harmful to the health of infants and developing children.

“The EPA has spent more than a decade assembling a record of chlorpyrifos’s ill effects and has repeatedly determined, based on that record, that it cannot conclude, to the statutorily required standard of reasonable certainty, that the present tolerances are causing no harm,” wrote District Judge Jed Rakoff, who served the appellate panel as a visiting judge, on behalf the majority. “Yet, rather than ban the pesticide or reduce the tolerances to levels that the EPA can find are reasonably certain to cause no harm, the EPA has sought to evade, through one delaying tactic after another, its plain statutory duties.”

The decision is an overwhelming victory for the band of farmworker advocacy organizations, conservation groups and public health interest groups that brought the series of lawsuits dating back to 2007, when they first petitioned the EPA regarding the safety of chlorpyrifos.

“The court got it right: EPA’s time is now up,” said Patti Goldman, managing attorney at environmental nonprofit Earthjustice. “EPA must now follow the law, ban chlorpyrifos, and protect children and farmworkers from a pesticide we know is linked to numerous developmental harms.”

The League of United Latin American Citizens, LULAC, has come before the Ninth Circuit multiple times in past years to get the EPA to rule one way or the other on chlorpyrifos. The pesticide is designed to attack the neurological systems of insects that feed on commercial crops.

The Ninth Circuit ruled in the group’s favor in April 2019, prompting the EPA to make a final decision on the insecticide’s safety. In July 2019, EPA administrator Andrew Wheeler declined to ban the pesticide, saying that LULAC and eight states, including the District of Columbia, lacked evidence to support their objections — though Wheeler said the agency would continue to monitor chlorpyrifos’s safety through 2022.

Wheeler’s decision came despite the Obama-era EPA’s announcement that it would ban chlorpyrifos in 2015, something former administrator Scott Pruitt reversed quickly after he was appointed by former President Donald Trump.

Critics say the decision to forgo the ban was unscientific and had more to do with the Trump administration’s business-friendly orientation than any honest and rigorous engagement with the science. 

The panel essentially agreed with LULAC and the other plaintiffs in saying Wheeler’s decision not to ban chlorpyrifos is legally impermissible unless the agency can make a scientific-based finding that certain residual amounts of the pesticide are not harmful to pregnant women and developing children.

“Between 2007 and 2016, the EPA published several Human Health Risk Assessments regarding chlorpyrifos and convened its Scientific Advisory Panel (‘SAP’) several times,” Rakoff wrote. “Those assessments and SAP reviews increasingly recognized the persuasiveness of the studies showing chlorpyrifos’s risks.”

During oral argument in July, the EPA argued that the court lacks jurisdiction to order the agency to make a specific finding regarding the safety of any pesticide, saying the law requires the courts to defer to the technical expertise of the agency.

“They have failed to cite a case where when an agency makes a legal error as to statutory construction, that the case is remanded to the agency with directions about how to resolve a factual error where there is conflicting evidence,” said Mike Walters, an attorney arguing on behalf of the EPA, in July.

The court did not remand the decision back to the EPA demanding it ban chlorpyrifos, but made clear that the agency must come up with a clear scientific justification for allowing its continued use. 

“By remanding back to the EPA one last time, rather than compelling the immediate revocation of all chlorpyrifos tolerances, the court is itself being more than tolerant,” Rakoff wrote. The judge added that “the EPA’s egregious delay exposed a generation of American children to unsafe levels of chlorpyrifos.”

A request for comment sent to the EPA was not returned by press time. 

The writing may be on the wall for chlorpyrifos irrespective of the legal fight. Months after California reached a deal with agrochemical companies to take the pesticide off the market, manufacturer Corteva announced this past February it would stop making the chemical by the end of 2020.

In late 2019, European Union member states voted to ban chlorpyrifos after the European Commission recommended nonrenewal and a European Food Safety Agency assessment confirmed “risks to human health.”

Jay Bybee, a circuit judge appointed by George W. Bush, dissented from the majority, saying the majority erred in not deferring to the EPA’s technical expertise.

Rakoff was appointed by Bill Clinton. Circuit Judge Jacqueline Nguyen, an Obama appointee, joined Rakoff in the majority.

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