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Daily News Blog

02
Oct

EPA Asks Appeals Court to Rehear Chlorpyrifos Case

(Beyond Pesticides, October 2, 2018) The U.S. Environmental Protection Agency (EPA) is asking an appeals court to rehear a case that previously ruled EPA must immediately ban the brain-harming pesticide chlorpyrifos. The agency is requesting the U.S. Court of Appeals for the Ninth Circuit in San Francisco convene an “en banc hearing,” which is a session held in front of the all judges in the court, rather than a panel of three judges.  An “en banc” request is generally only accepted when an issue conflicts with a previous court decision, or is of significant importance for the general public.

The move by EPA, now under the purview of Acting Administrator Andrew Wheeler, is the latest attempt by the agency to keep the highly toxic organophosphate insecticide on the market. It marks a continuation of the policy approach taken by former Administrator Scott Pruitt, who famously met with Dow Chemical’s CEO Andrew Leveris weeks before EPA reversed course on chlorpyrifos.

Under the Obama administration, the agency announced its intent to cancel agricultural uses of chlorpyrifos due to strong evidence of harm to the brain and proper development of children. This move itself was the result of a petition and hard fought legal case by Pesticide Action Network and the Natural Resources Defense Council.

However, the Obama EPA did not finalize the chlorpyrifos cancelation before leaving office, providing an opportunity for the Trump administration and then-Administrator Pruitt to make a last-ditch effort to keep chlorpyrifos on the market. In its refusal, EPA indicated falsely that the science around the chemical was “unresolved” and that the agency would continue studying the chemical until 2022, when its registration is required to be renewed.

In response to the about-face by the Pruitt EPA, Earthjustice and a coalition of other groups sued EPA for its delay. That lawsuit was successful, resulting in an order from the appeals court requiring EPA ban chlorpyrifos within 60 days. In its ruling in favor of the plaintiffs, and in consideration of the health impacts the court said, “If Congress’s statutory mandates are to mean anything, the time has come to put a stop to this patent evasion.”

With its “en banc” request, EPA is continuing its efforts to find any route possible to protect Dow Chemical’s market share. In its request to the court, the U.S. Justice Department argues: “The panel’s order limiting EPA’s options on remand conflicts with Supreme Court precedent holding that where an agency’s order is not sustainable on the record, a court should vacate the underlying decision and remand for further consideration by the agency, rather than directing specific action.”

Essentially, the the government’s lawyers are arguing that the court should have let EPA continue to study chlorpyrifos, rather than order the agency to ban it.

As this case continue to wind through the courts, many states are deciding not to wait for the federal government before protecting residents from the highly toxic insecticide. In August, California listed chlorpyrifos as a toxic air contaminant based on risk of exposure from drift after an application. Hawaii took the strongest action yet, with lawmakers in the state legislature voting to ban all uses of the chemical starting in 2019.

Although health advocates continue to wait for a solution to chlorpyrifos contamination in the courts, there are other opportunities to stop chlorpyrifos at the federal level. Keep the pressure up by urging your Senators to support S. 1624, the Protect Children Farmers and Farmworkers from Nerve Agent Pesticides Act of 2017. You can also get active on the issue in your state by urging your state lawmakers to follow in Hawaii’s lead.

For more information on chlorpyrifos and the legal case surrounding its use, see Beyond Pesticides’ article Widely Used Pesticide in Food Production Damages Children’s Brains: EPA science on chlorpyrifos ignored as agency reverses decision to stop insecticide’s agricultural use.

All unattributed positions and opinions in this piece are those of Beyond Pesticides.

Source: DTN Progressive Farmer

 

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