Ninth Circuit Slams EPA for Delaying Decision on Flea-Collar Pesticide

The toxin, a chemical relative of the sarin gas developed as a chemical weapon in World War II, has been linked to developmental problems in children.

The headquarters of the Environmental Protection Agency in Washington (Photo by JACK RODGERS/Courthouse News Service)

(CN) — The Ninth Circuit handed an environmental organization a legal victory Wednesday by ordering the U.S. Environmental Protection Agency to decide within 90 days whether a chemical in flea collars worn by pets should be banned due to the potential harm to children.

“Repeatedly, the EPA has kicked the can down the road and betrayed its prior assurances of timely action, even as it has acknowledged that the pesticide poses widespread, serious risks to the neurodevelopmental health of children,” the three-judge panel wrote in the 19-page opinion

The ruling does not dictate the federal agency’s decision, but instead orders the agency to stop delaying making a decision at all. 

The pesticide in question, tetrachlorvinphos or TCVP, is commonly used in pet collars designed to kill ticks and fleas but is otherwise banned for residential use. The pesticide belongs to a family of chemicals called organophosphates, which are chemically similar to sarin gas developed by German scientists in World War II. 

While the chemical is not suspected to have carcinogenic properties for humans, studies have shown it can have dangerous effects on childhood development. Specifically, exposure to the drug has been shown to cause delays in mental development in infants and a range of issues in early childhood development, including autism. 

“Children and infants are particularly at risk from exposure to pesticides because their normal activities, such as crawling on the floor and putting their hands in their mouths, can result in increased exposures,” said Miriam Rotkin-Ellman, a scientist with the Natural Resources Defense Council (NRDC). 

Rotkin-Ellman conducted a study that looked at the amount of TCVP residue in dog and cat fur as a result of flea collars and found that in many instances children were exposed to levels of the pesticide that exceeded EPA safety thresholds. 

NRDC is the plaintiff in the case and celebrated the court victory on Wednesday. 

“This is an important victory — and one for which we’ve been fighting for more than a decade,” said Mae Wu of the NRDC in a statement issued Wednesday. “In 2016, EPA scientists finally acknowledged the danger this toxic chemical poses to children, but the agency then failed to remove the dangerous pet products from the market.”

The EPA will now be required to rule one way or the other on the legal viability of the pesticide within 90 days. 

“With what their own scientists have said, we don’t think there is any other legal conclusion short of an outright ban,” said NRDC attorney Ian Fein in an interview. 

TCVP is a chemical cousin of chlorpyrifos, another pesticide that is widely used throughout the United States in agricultural applications. Both chemicals attack the neurological systems of insects but can also harm the neurological systems of mammals, including humans. 

Like TCVP, the EPA has been slow to rule on the legal viability of chlorpyrifos. A separate lawsuit is pending in the Ninth Circuit that seeks to force the agency to rule on whether a ban on chlorpyrifos is appropriate. 

Judging by the court’s Wednesday ruling, it appears Ninth Circuit judges grow weary of the agency’s tactic to drag its feet in making decisions, thereby avoiding lawsuits and a final determination on whether the chemicals can be used in household applications. 

“The EPA’s years-long delay on this critical matter of public health has been nothing short of egregious,” wrote U.S. Circuit Judge Ronald Gould on behalf of the unanimous majority. “For more than a decade, the EPA has frustrated NRDC’s ability to seek judicial review by withholding final agency action, all the while endangering the wellbeing of millions of children and ignoring its ‘core mission’ of ‘protecting human health and the environment.’”

Gould was appointed by President Bill Clinton. U.S. Circuit Judge R. Guy Cole Jr., also a Clinton appointee sitting by designation from the Sixth Circuit, joined the opinion along with Barack Obama appointee U.S. Circuit Judge Mary Murguia.

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