By Sarah Everhart
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On July 24, 2019 the U.S. Environmental Protection Agency (EPA) issued its decision not to ban chlorpyrifos. Chlorphyrifos is a pesticide used in the production of approximately 80 food crops, including fruits, nuts, and vegetables (40 C.F.R. § 180.342). This recent EPA decision has been long awaited by many environmental, agricultural and health advocates and, as I will attempt to explain below, is the culmination of a complex legal battle that has been waging for more than a decade.
The Federal Food, Drug, and Cosmetic Act (“FFDCA”) requires EPA to ban a pesticide unless “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide.” 21 U.S.C. § 346a(b)(2)(A)(ii). If EPA finds the pesticide to be safe, it can regulate the use of the pesticide by establishing “a tolerance for a pesticide chemical residue in or on a food.” 21 U.S.C. § 346a(b)(2)(A)(ii)
The legal fight over chlorpyrifos arose from a 2007 petition filed under the FFDCA (21 U.S.C. § 346a(d)) proposing that the EPA revoke all tolerances for chlorpyrifos. The petition, filed by the Pesticide Action Network North America (“PANNA”) and the Natural Resources Defense Council (“NRDC”), presented scientific studies showing that children and infants who had been exposed prenatally to low doses of chlorpyrifos suffer harms such as reduced IQ, attention deficit disorders, and delayed motor development, that last into adulthood.
By 2012 EPA still had not responded to the 2007 petition which prompted PANNA and NRDC to file a petition in the U.S. Court of Appeals for the Ninth Circuit to force the EPA to take action. The Ninth Circuit initially dismissed the petition based on the EPA’s representation that it had a “concrete timeline for final agency action” to be taken on the 2007 petition by February 2014. When the EPA failed to respond to the 2007 petition by September 2014, PANNA and NRDC again petitioned the court and in response the Ninth Circuit ordered the EPA to issue a final response by October 2015. In November 2015, EPA issued a proposed rule revoking all tolerances for chlorpyrifos (80 Fed. Reg. 69,080). Following the proposed rule, however, EPA again delayed any final action. The following year, on November 10 2016, EPA scientists revised the human health hazard assessment and drinking water exposure assessment for chlorpyrifos. According to EPA, the revised analyses indicated the residues of chlorpyrifos on food crops exceeded the safety standard under the FFDCA and the majority of estimated drinking water exposures exceeded safe levels.
On March 29, 2017 after the change in presidential administration and despite the scientific findings of EPA the year before, EPA changed course, denied the 2007 petition and maintained a tolerance for chlorpyrifos (82 Fed. Reg. 16,581). Environmental groups and farmworkers challenged that order in court (League of United Latin Am. Citizens v. Wheeler, No. 17-71636) claiming that the 2017 order failed to respond adequately to the 2007 petition. On August 9, 2018, the U.S. Court of Appeals for the Ninth Circuit ordered EPA to revoke all tolerances and cancel all registrations for the pesticide. Thereafter, EPA requested the case be reheard by the entire panel of judges for the Ninth Circuit. In April of this year, the Ninth Circuit directed the EPA to make a full and fair decision on the chlorphyrifos issue within 90 days of the Court’s order which EPA did on July 24, 2019.
Despite EPA’s refusal to ban chlorphyrifos, the legal drama associated with banning this pesticide are far from over and have instead moved to the state level. Currently, three states (NY, HI and CA) have passed state laws to ban the use of the pesticide. Last year, in the Maryland General Assembly, there was an attempt to pass a law banning the use of the pesticide and, given the recent decision on the federal level, an attempt to ban chlorphyrifos will most likely make another appearance in Maryland’s General Assembly in the near future.
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