(CN) – An en banc panel of the Ninth Circuit appeared reluctant to uphold a three-judge panel August decision requiring the Environmental Protection Agency to ban pesticide chlorpyrifos over potential jurisdictional issues during a hearing held in San Francisco on Tuesday.
“You don’t have an order on your objections and you are asking us to get to the merits even though there has been no ruling on your objections,” said Circuit Judge Richard Paez — one of 11 judges to sit on the panel.
Paez was addressing Patty Goldman, the Earthjustice attorney arguing for The League of United Latin American Citizens.
Goldman and a coalition of states, led by New York, are asking the court to order the EPA to rule that chlorpyrifos, a widely used pesticide, is dangerous for human consumption and should be banned as a result. The Trump administration argued that the League should have taken their objections to federal court first, but skipped that crucial step and went straight to the appellate court.
Paez and many other judges aired the same concerns, asking Goldman to detail why she felt the circuit court was the appropriate venue for the case.
Given the nature of the questions asked by the judges, the court appeared more comfortable in ordering the EPA to respond to objections filed by the League, a coalition of farm labor and environmental organizations, but stopping short of dictating the specific nature of the response.
The League objected to the EPA’s denial of its petition to ban chlorpyrifos, despite the agency’s own scientists concluding that the pesticide can harm childhood brain development.
Goldman asked the en banc panel to not only force the EPA to respond to the coalition’s objections, but to require the agency adhere to the course she said was stipulated by federal law.
“The EPA can take one of the three actions legally required under the statute,” Goldman said.
They can ban the pesticide, come up with a proposed ban while they finalize the science or issue a ruling that denies the ban, Goldman said. To achieve the third scenario, EPA must make a safety finding that demonstrates the pesticide is safe for human consumption, something Goldman said the agency has been unable to do.
“The EPA has to do one of the things Congress told it must do in response to a petition,” Goldman said.
Jonathan Brightbill, a lawyer for the Department of Justice appointed by President Donald Trump, said the League failed to take their claims to federal court first.
“There should be no original grant of jurisdiction to this court to consider a denial order,” Brightbill said. “To the extent there would be a challenge that would have to be heard in the district court.”
While Brightbill’s argument gained traction in the hearing, they also maintained that if the League’s request was merely to force the EPA to respond to the League’s objections, jurisdictional issues became moot.
“If we construe the appeal as seeking mandamus relief, then you are asking us to reach a jurisdictional question we might not have to reach,” Chief Justice Sidney Thomas said.
Thomas and others also peppered Brightbill with questions about when the agency would be able to respond to the objections, given the case is about delay in decision-making.
It appears headed that way though, as the 11 judges also peppered Brightbill with questions about the already lengthy delays as the EPA has drug its feet for almost five years since its scientific advisory board first found that chlorpyrifos was likely harmful to children.
The case dates back to 2007, when the Pesticide Action Network and the Natural Resources Defense Council asked the EPA to “revoke the tolerances” for chlorpyrifos, which essentially amounts to a ban.
The petition was denied with a lack of scientific evidence, but after additional studies were conducted and an EPA scientific advisory board found a nexus between the pesticide and human health problems, the EPA revisited the issue in 2014.
In 2015, a Ninth Circuit panel granted a writ of mandamus, ordering the EPA to make a decision.
With the election of Trump in 2016, the EPA executed another about-face under the leadership of former EPA Administrator Scott Pruitt, denying the petition while asking for more time to look at additional science. The League then objected to that denial and the EPA has yet to rule on those objections, which is how the two parties found themselves in court on Tuesday.
Multiple studies have found that levels of the pesticide can impair brain development in young children.
Chlorpyrifos was banned for indoor and residential use in 2001, but continues to be used on a wide range of crops, most often in orchards. The hearing was held on a day when the New York Times released its investigation that found the Trump administration has known since 2017 that chlorpyrifos is harmful to about 1,400 endangered species.
The matter was taken under submission and a decision will be handed down in the next couple of months. In the meantime, the August decision by the three-person panel is vacated.