EPA Nears Chlorpyrifos Ban on Crops as Advocates’ Petition Prevails (1)

A federal appeals court order has paved the way for the EPA to ban nearly all uses of a widely used pesticide linked to neurodevelopmental delays, in a victory for environmentalists.

Judge Jed S. Rakoff, sitting by designation on the U.S. Court of Appeals for the Ninth Circuit, criticized the administration for its multiple efforts over the years to delay restrictions on chlorpyrifos. In the Aug. 9 ruling, the court nullified the EPA’s decision to overturn a proposed ban on the pesticide and directed the agency to cancel all registrations for chlorpyrifos within 60 days.

“The time has come to put a stop to this patent evasion,” Rakoff wrote in the opinion. Judge Jacqueline H. Nguyen joined the opinion, and Judge Ferdinand F. Fernandez dissented.

The Natural Resources Defense Council and Pesticide Action Network North America filed a petition in 2007 asking the EPA to disallow spraying of chlorpyrifos on crops. The groups sued the agency in 2014 for failing to act on the petition.

Former Administrator Scott Pruitt in March 2017 denied that petition and delayed a decision on how to regulate the pesticide to 2021.

Dow Pesticide

Earthjustice, the environmental law groups representing plaintiffs League of United Latin American Citizens, NRDC, PANNA and others, praised the decision as a “major victory for children and farmworkers.”

“Soon our fields, our fruits and vegetables will be chlorpyrifos free,” Earthjustice attorney Marisa Ordonia said in an email to Bloomberg Environment.

Developed by Dow Chemical Co. and approved by the EPA in 1965, chlorpyrifos is widely used on corn and soybeans, as well as fruit and vegetables and golf courses. It is the most common in a class of pesticides called organophosphates.

Corteva, the agricultural division of DowDupont Inc., didn’t immediately respond for Bloomberg Environment’s request for comment. The Justice Department said it is reviewing the ruling and wouldn’t comment further.

The chemical works by overstimulating an insect’s nervous system, which kills them. In humans, sufficient levels of organophosphate exposure can lead to headaches and nausea, and in serious cases convulsions or death.

A number of studies also have linked long-term exposure to cognitive delays and low IQ in children. The Obama administration took steps to ban the pesticide on crops, releasing a human health risk assessment and proposed rule that relied on studies that linked chlorpyrifos exposure to low IQ and other cognitive delays. The agency reached an agreement with the pesticide industry in 2000 to ban all indoor uses of chlorpyrifos.

Pruitt’s March 2017 denial of the petition reversed course on the previous administration’s work.

Seven states and Washington, D.C., intervened in the case to oppose the Trump administration’s decision. Dow Agrosciences LLC filed a brief in support of the EPA’s decision to postpone.

‘Utter Failure’

Rakoff lambasted EPA’s inaction on restricting the pesticide, despite its own assessments that found current use in violation of the Federal Food, Drug, and Cosmetic Act. The agency was unable to defend the merits of its decision in court, he wrote.

EPA “has itself long questioned the safety of permitting chlorpyrifos to be used within the allowed tolerances,” Rakoff, ordinarily a judge on the U.S. District Court for the Southern District of New York, wrote. “The EPA’s utter failure to respond to the objections deprives us of jurisdiction to adjudicate whether the EPA exceeded its statutory authority in refusing to ban use of chlorpyrifos on food products.”

Fernandez’s disagreed with the majority opinion’s holding that the court has jurisdiction to review the case.

The case is League of United Latin Am. Citizens v. Wheeler, 9th Cir., No. 17-71636, 8/9/18.