The U.S. Court of Appeals for the 9th Circuit ran out of patience with the EPA’s conflicting positions on the pesticide chlorpyrifos and ordered the Agency to revoke all food tolerances and cancel all registrations for the chemical within 60 days of the court’s August 9, 2018, opinion (League of United Latin American Citizens, et al. v. EPA).
Initially, at least, the decision will deprive farmers of an effective pest control substance used on about 50 crops. However, the 2–1 ruling may have opened the door to an appeal by the Agency, industry associations, and/or Dow Chemical, which manufactures chlorpyrifos.
Dow introduced chlorpyrifos in the 1990s and now sells about 5 million pounds of the chemical each year. Since at least 1998, the EPA has raised concerns about the adverse impact of chlorpyrifos on children. Accordingly, in 2000, the EPA banned most residential uses of the substance but left most tolerances (that is, maximum amounts of residual pesticide on food products) in place in its registration of chlorpyrifos.
In 2007, environmental and agricultural worker groups petitioned the EPA to revoke all remaining tolerances for chlorpyrifos. After years of nonresponse from the EPA, the petitioners went to the 9th Circuit. In August 2015, the 9th Circuit ordered the EPA to respond by either denying the petition or issuing a proposed or final rule revoking the tolerances. In November 2015, pursuant to the court’s order, the EPA proposed to revoke all chlorpyrifos tolerances based in part on uncertainty surrounding the potential for chlorpyrifos to cause neurodevelopmental effects. In August 2016, the 9th Circuit ordered the EPA to complete a final petition response, and either deny it or grant it by March 31, 2017. The EPA responded in time with an order stating that it would not revoke tolerances as “the science addressing neurodevelopmental effects remains unresolved.”
Safe Determination Never Made
The current case arises from a follow-up petition in which the plaintiffs argued that the EPA’s 2017 order did not respond adequately to the initial petition.
The majority noted that almost every statement the EPA has made about chlorpyrifos over the previous 20 years indicate that it presents an unacceptable health risk. Also, the majority points out that the EPA may grant a food tolerance only when it determines that the tolerance is safe—that is, the Agency has determined that there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide.
“Respondent, 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 majority stated.
Ultimately, the panel held that the EPA could not maintain a tolerance for chlorpyrifos in the face of scientific evidence that its residue on food causes neurodevelopmental damage to children.
The EPA put up no defense against the charge that chlorpyrifos could not be registered for food uses because of the risk it posed to children. Instead, the Agency raised an administrative defense against the petitioners’ case. Specifically, the EPA argued that under Section 346a(g)(2)(C) of the Federal Food, Drug, and Cosmetic Act, the 9th Circuit does not have jurisdiction to rule in the case until the Agency responds to the petitioners’ objections to the 2017 order. The majority was not persuaded.
“Applying this analysis to the present case, a jurisdictional finding would mean that under no circumstances could persons obtain judicial review of a denial of a petition prior to an EPA response to an administrative objection, even under exigent circumstances where the EPA was unwilling or unable to act,” wrote the majority. “The EPA could evade judicial review simply by declining to issue a (g)(2)(C) order in response to an objection, requiring petitioners to seek writs of mandamus to order EPA action on objections. The history of this very case vividly illustrates this danger.”
“If Congress’s statutory mandates are to mean anything, the time has come to put a stop to this patent evasion,” the majority added.
In his dissent, Judge Ferdinand Fernandez disagreed, stating that the court does not have jurisdiction until the Agency’s record is complete.
“Here Congress was very careful and very specific about the class of cases—the limited kind of orders—over which it wished to give the courts of appeals direct review,” wrote Fernandez. “It made it plain that we could not review the EPA’s actions in this specific area until the agency had developed and considered a full record regarding objections and the like. Before that occurred, judicial review was not available; we had no authority whatsoever to consider the issue.”