Full Ninth Circuit Orders EPA to Stop Stalling on Pesticide

(AP Photo/Dave Martin, File)

(CN) – The en banc Ninth Circuit ordered the U.S. Environmental Protection Agency to decide by mid-July whether to ban a widely used pesticide that the agency’s own scientists have said is harmful to childhood development.

The panel of 11 judges granted a writ of mandamus sought by the League of United Latin American Citizens (LULAC) and ordered the EPA to make a final decision on the organization’s objections to the agency’s refusal to ban the pesticide chlorpyrifos.

“EPA is hereby ordered to issue, no later than 90 days after the filing of this order, a full and final decision on LULAC’s objections,” the court said in a terse 7-page order.

EPA spokesperson James Hewitt said in an email the agency will comply.

“We are reviewing the court’s order and will be taking final action on the administrative objections before the agency within 90 days,” Hewitt said.

Chlorpyrifos, which multiple scientific studies have linked to neurological development problems in children, is prohibited for domestic use but continues to be used in commercial agricultural production.

“We commend the court for this ruling as it forces the EPA to stop stalling,” said Earthjustice attorney Patti Goldman. “While we are moving forward, the tragedy is that children are being exposed to chlorpyrifos, a pesticide science has long shown is unsafe.”

Goldman argued the case at the Ninth Circuit last month on behalf of a coalition of environmental organizations and farm labor groups. They asked the court to not only order the EPA to act on her group’s objections, but to ban the chemical as well.

Some members of the en banc balked at the request, saying Goldman and her clients have recourse in the trial courts if the EPA once again refuses to ban chlorpyrifos.

But the panel also chastened the government for its decision-making delay, repeatedly asking pointed questions about whether the EPA is prepared to make a decision within 90 days.

Friday’s ruling marks another chapter in a tortuous process that began in 2007, when Pesticide Action Network and the Natural Resources Defense Council asked the EPA to “revoke the tolerances” for chlorpyrifos, which essentially amounts to a ban.

At the time, the EPA denied the groups’ petition but reopened the case after a study showed prenatal exposure to chlorpyrifos led to long-term and potentially irreversible damage to the structure of children’s brains.

Other studies, including internal ones conducted by EPA scientists, indicated chlorpyrifos exposure results in developmental problems such as lower IQ.

In 2015, the Ninth Circuit ordered the EPA to make a final decision on a ban of chlorpyrifos.

The agency was poised to do so when Donald Trump was elected president in 2016, ushering in a new administration. In 2017, then-EPA administrator Scott Pruitt announced the agency would deny the petition to revoke the tolerances and take yet another look at the science before making a decision in 2022, prompting the latest round of objections and lawsuits.

Critics of Trump’s EPA point to a cozy relationship between the Trump administration and the executive leadership of Dow Chemical – now DowDupont – which manufactures chlorpyrifos.

Goldman said Pruitt met with the head of manufacturing at Dow weeks before making his decision.  

During oral arguments last month, Goldman said the EPA is in an untenable legal position when it comes to safety tolerances for chlorpyrifos.

“The EPA can take one of the three actions legally required under the statute,” Goldman said during the hearing: issue a ban, devise a proposed ban while finalizing the science, or deny the ban while making a safety finding demonstrating the chemical is safe for human consumption. The EPA cannot demonstrate the chemical’s safety and must proceed with the other two, Goldman said.

Chlorpyrifos is an organophosphate deriving from the same chemical family as sarin nerve gas. It is used widely on fruits and vegetables, particularly strawberries, apples, citrus fruits, broccoli and corn.  

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