A national ban on chlorpyrifos — widely used in U.S. agriculture — is back on after a 2-to-1 ruling published Aug. 9 by the 9th U.S. Circuit Court of Appeals. The ruling gives the U.S. Environmental Protection Agency (EPA) 60 days to “revoke all tolerances” and “cancel all registrations” for the pesticide.
Writing for the majority, Judge Jed S. Rakoff said “over the past decade and more, the EPA has stalled on banning chlorpyrifos.” Most recently former EPA Administrator Scott Pruitt denied a petition for the ban in March 2017.
Rakoff, 75, is a U.S. District Court judge for the Southern District of New York who since 2010 has been on “senior status” and served by “designation” on the 9th Circuit panel. He was joined by Judge Jacqueline Hong-Ngoc Nguyen, 53, on the majority side of the ruling.
Judge Ferdinand Francis Fernandez, 81, was the third and dissenting member of the appeals panel. He is a “senior status” judge with the 9th Circuit who concluded the appellate court does not have jurisdiction in the matter.
“In short, I see no basis for deconstructing that carefully constructed jurisdictional scheme and thereby inviting premature attacks on matters committed to the expertise of the agency in the first instance,” Fernandez said in his dissent.
Before Thursday’s ruling, EPA’s next chlorpyrifos review would not have occurred until 2021.
Chlorpyrifos was first registered for use in the United States in 1965 by Dow Chemical to control leafage and ground insects. It was widely used on residential lawns and golf courses and as a termite control agent on structures until it was banned after about 15 years for any home use.
Agricultural use as a pesticide continued to be permitted with restrictions found on label instructions. The U.S. Department of Agriculture also continued to support its use for pest management by fruit and vegetable growers.
According to the American Farm Bureau Federation, chlorpyrifos has been used as a part of environmentally friendly IPM (integrated pest management) programs for nearly 50 years.
Chlorpyrifos is used for a wide range of crops, including alfalfa, citrus, vegetables, soybeans, almonds, and others. It also protects hundreds of thousands of acres of grass seed production, where it controls aphids, cutworms, and other pests.
“Michigan Farm Bureau submitted comments into EPA last year regarding the proper use of Chlorpyrifos, trade name Lorsban, as a preventative measure to protect fruit trees from borers,” said Kevin Robson, horticulture specialist with Michigan Farm Bureau. The application is primarily a trunk spray at the onset of the growing season. Former EPA Administrator Pruitt kept this crucial crop protection material in the farmer’s toolbox for this growing season, and Acting Administrator Andrew Wheeler has continued that,” he said.
The Natural Resources Defense Council and Pesticide Action Network North America filed a petition in 2007, asking EPA to ban chlorpyrifos from use on crops. The EPA did not respond and the environmental watchdog groups sued in 2014 regarding the agency’s failure to act. A year later they asked the EPA to revoke all food residue tolerances for chlorpyrifos.
That action followed a 2011 Science Advisory Panel report that the 9th Circuit ruling said “found ‘persuasive’ evidence ‘that there are enduring effects on the central nervous system … from chlorpyrifos exposure at or above 1.0 mg/kg.”
The scientific advisory panel also reported chlorpyrifos exposure is associated with adverse neurodevelopmental effects in children, including abnormal reflexes, pervasive development disorder, and attention and behavior problems.
Writing for the majority in the appeal ruling, Rakoff said the EPA is authorized to “leave in effect a tolerance for a pesticide chemical residue in or on a food only if the Administrator determines that the tolerance is safe” — with “safe” defined to mean the EPA “has determined that there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.”
Rakoff continued, saying the EPA ” has never made any such determination and, indeed, has itself long questioned the safety of permitting chlorpyrifos to be used within the allowed tolerances. The EPA, therefore, does not defend the 2017 Order on the merits.
“Instead, the EPA argues that, despite petitioners having properly-filed administrative objections to the 2017 Order more than a year ago, and despite the statutory requirement that the EPA respond to such objections “as soon as practicable,” 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.
“We hold that obtaining a response to objections before seeking review by this Court is a claim-processing rule that does not restrict federal jurisdiction, and that can, and here should, be excused. There being no other reason not to do so, we grant the petition on the merits.”
“Over nearly two decades, the U.S. Environmental Protection Agency has documented the likely adverse effects of foods containing the residue of the pesticide chlorpyrifos on the physical and mental development of American infants and children, often lasting into adulthood,” says the court ruling. “In such circumstances, the federal law commands that the EPA ban such a pesticide from use on food products unless “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide.
“Yet, over the past decade and more, the EPA has stalled on banning chlorpyrifos, first by largely ignoring a petition properly filed pursuant to law seeking such a ban, then by temporizing in response to repeated orders by this Court to respond to the petition, and, finally, in its latest tactic, by denying outright our jurisdiction to review the ultimate denial of the petition, even while offering no defense on the merits,” Rakoff said.
“If Congress’s statutory mandates are to mean anything, the time has come to put a stop to this patent evasion.”
Despite the court’s strong language, this will take time.
“Like anything with federal agencies, this decision marks the start of a long process, where MFB will have additional opportunity to weigh in from a technical standpoint, and do the best we can to keep this safe product in the hands of growers,” Robson said. “While this decision was made in the 9th circuit, we still remain optimistic that EPA will do its due diligence, cling tightly to science, and realize the importance of this material for the production of fruit in Michigan.”