Farmworkers Lobby Ninth Circuit to Force Ban on Pesticide That’s Toxic to Children

(CN) — Farmworker advocates squared off with the U.S. Environmental Protection Agency before a remote Ninth Circuit panel Tuesday, arguing the agency’s persistent allowance of the use of pesticide chlorpyrifos is illegal and hurting the neurological development of children. 

The League of United Latin American Citizens (LULAC) joined forces with nine states including New York to request the Ninth Circuit to order the EPA to revoke all tolerances of chlorpyrifos — essentially a ban of one of the most widely used pesticides in the United States. 

“When the EPA denies a petition to revoke tolerances, it must do so only when it finds the pesticide safe,” said Patti Goldman, an Earthjustice attorney, arguing on behalf of LULAC. “The findings here show that exposure, even at very low levels, causes permanent brain damage in children.”

Tuesday’s hearing represented yet another chapter in an extensive saga of the EPA’s allowance of the use of chlorpyrifos, which scientific studies have linked to developmental issues in children. 

LULAC has been in court multiple times in the past few years, mostly in an attempt to get the EPA to actually rule one way or the other on chlorpyrifos. The pesticide is designed to attack the neurological system 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 safety of the insecticide. In July 2019, EPA Administrator Andrew Wheeler declined to ban the pesticide, saying there was a lack of evidence that supported the objections raised by LULAC and the states — though he said the agency would continue to monitor its safety through 2022. 

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

On Tuesday, Goldman said the EPA was violating its own laws by forgoing the ban and choosing to monitor the safety of the pesticide through 2022. Instead, when considering a petition to ban a given pesticide, Goldman said the EPA has basically two options according to its own protocols — ban the chemical or make a finding that the chemical is safe. 

“When the EPA acts on a petition and leaves something in effect, it must have grounds that it is safe,” Goldman said. 

Senior U.S. District Court Judge Jed Rakoff, a Bill Clinton appointee sitting by designation from the Southern District of New York, peppered Goldman with questions about the validity of the EPA’s own scientific findings that chlorpyrifos causes brain damage in children. 

“There’s lots of correlations that are meaningless,” Rakoff said, noting the science does not identify the precise biological mechanism whereby the pesticide harms children. 

Goldman said the precise mechanism is not necessary to understand there is proven causation between the pesticide and neurodevelopmental issues in human children. Rakoff also brought up the fact that Columbia University, which performed the most important study of chlorpyrifos’s impact on childhood development, refused to share the raw data with the EPA. 

Goldman said Columbia had privacy concerns about sharing raw data with a federal agency subject to public records requests. 

Arguing for the EPA, Mike Walters said Goldman and others misconstrued the EPA’s rules and said the agency is perfectly within its legal discretion to keep the current tolerances in place while conducting further analysis. 

“In the petition context, the administrator never has to get to the question of whether the pesticide is unsafe,” Walters said. 

He said that even if the court found the EPA needed to make a decision to either revoke the findings or to declare the pesticide unsafe, the court is not in a position to dictate the course of that decision. 

“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,” Walters said. 

Goldman countered by saying there is no conflicting evidence. Instead, she argued, the danger presented by the pesticide is clear. 

Furthermore, she said if the court refuses to direct the EPA to ban the pesticide, but instead defers to the agency’s discretion, the EPA will continue to drag its feet. 

“The delay may go on for many more years,” Goldman said. 

The panel took the matter under submission. U.S. Circuit Judges Jacqueline Nguyen, a Barack Obama appointee, and George W. Bush appointee Jay Bybee joined Rakoff on the panel.

Regardless of how the panel rules, the writing may be on the wall for chlorpyrifos. 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, EU member states voted to ban chlorpyrifos after the European Commission’s recommendation of nonrenewal and an assessment by the European Food Safety Agency that confirmed “risks to human health.”

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