Bid to Ban Pesticide Shot Down as Premature

SAN FRANCISCO (CN) – A Ninth Circuit panel on Tuesday denied a bid by environmental organizations to force the federal agency tasked with regulating pesticides to make a decision on the fate of chlorpyrifos, a widely used chemical that critics say has a detrimental impact on neurological development in children.

The panel found the Pesticide Action Network and the Natural Resources Defense Council hadn’t exhausted their administrative remedies as required by law with regard to the U.S. Environmental Protection Agency’s denial of a petition to revoke all food tolerances and cancel the registrations of chlorpyrifos.

“PANNA’s complaints arrive at our doorstep too soon,” the panel wrote in a terse 5-page ruling. “Although we previously condemned EPA’s ‘egregious’ delay in responding to PANNA’s petition, the agency has now complied with our orders by issuing a ‘final response to the petition.’”

Indeed, the EPA under the leadership of President Donald Trump’s controversial appointee Scott Pruitt made a final decision on March 29 – denying the petition. The denial means the pesticide will continue to be used throughout the nation.

“By reversing the previous administration’s steps to ban one of the most widely used pesticides in the world, we are returning to using sound science in decision-making – rather than predetermined results,” Pruitt said at the time.

A coalition of environmental groups originally filed a petition with the EPA in 2007, asking the agency to explore banning the pesticide that is widely used in agricultural areas in Iowa, California and throughout the Midwest.

The Ninth Circuit issued a ruling in 2015, rebuking the agency for taking too long to decide the pesticide’s fate, giving environmental organizations hope the panel would rule in their favor once again.

However, the latest ruling said the environmentalists asked the court to rule on the substance of the EPA’s decision, rather than the timing – and the groups had a new set of hoops to jump through first.

“Now that EPA has issued its denial, substantive objections must first be made through the administrative process mandated by statute,” the panel wrote.

The panel consisted of Circuit Judges Diarmuid O’Scannlain, A. Wallace Tashima and M. Margaret McKeown.

Patti Goldman, Earthjustice attorney who represented the environmental organizations on the case, said they would continue to fight the EPA through the courts. But Pesticide Action Network executive director Kristin Schafer had stronger words.

“Waiting until 2022 to take action on this brain-harming chemical is irresponsible,” Schafer said in a statement. “It is also exactly what Dow Chemical requested, and it serves their bottom line well at the expense of children, farmers and rural families across the country.”

Schafer and other critics have pointed to the apparently close relationship between Trump and Dow Chemical.

Dow Chemical CEO Andrew Liveris called Trump’s administration “the most pro-business administration since the Founding Fathers.”

Trump handed Liveris a pen used to sign an executive order on Feb. 24 that peeled back several regulations. Liveris also chairs Trump’s American Manufacturing Council.

“Trump’s EPA is handing out favors to his cronies in the chemical industry, at the expense of children’s health and well-being,” said Miriam Rotkin-Ellman, senior scientist at the Natural Resources Defense Council. “This dangerous chemical has no place in our communities or on the food we feed our families.”

The environmentalists point to the EPA’s own scientific studies released in 2016, which concluded the pesticide does adversely impact neurodevelopmental outcomes in children and recommended the revocation of all tolerances.

Chlorpyrifos is banned for personal use in the United States, but the nation is one of more than 100 that allow farmers to use it. Dow Chemical says multiple studies show the pesticide meets regulatory standards of a reasonable certainty of no harm to humans.

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