07
May
Court Requires EPA to Respond to Petition to Ban Toxic Pesticide in Pet Products
(Beyond Pesticides, May 7, 2020) On April 22, 2020, the Ninth Circuit U.S. Court of Appeals granted the U.S. Environmental Protection Agency (EPA) 90 days to respond to Natural Resources Defense Council’s (NRDC) petition requesting cancellation of tetrachlorvinphos (TCVP), a toxic organophosphate pesticide in pet products. The order followed the Ninth Circuit’s decision to grant NRDC’s petition for a writ of mandamus (a court’s order requiring a lower court or public authority to perform its statutory duty) as EPA withheld action to fulfill NRDC’s judicial review of TCVP, for over a decade. A favorable ruling on NRDC’s mandamus petition can influence other petitioners that hope to coerce agency action, especially when public health is at risk. The court states, “Repeatedly, the EPA has kicked the can down the road and betrayed its prior assurances of timely action, even as it has acknowledged that the pesticide poses widespread, serious risks to the neurodevelopmental health of children.”
NRDC petitioned EPA to cancel TCVP pesticide registration under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) in April 2009, after studies indicated humans absorb TCVP through contact with pesticide-treated pet products. EPA failed to respond to the initial petition after five years, and NRDC filed a 2014 mandamus requiring EPA to issue a response. EPA’s response denied cancellation of TCVP pesticide registration, seven months later. NRDC filed a 2015 lawsuit challenging EPA decision as the council found rejection of the petition to be unlawful. However, 2016 litigation results compelled EPA to reevaluate TCVP safety and found adverse risks to people, especially children. Although EPA completed a final risk assessment in 2016, the agency failed to ban residential TCVP use in pet products. On May 29, 2019, NRDC – yet again – petitioned for mandamus in the Ninth Circuit, pursuing EPA’s final response to NRDC’s 2009 petition.
Ninth Circuit U.S. Appeals Court determined whether delays in EPA’s response to NRDC’s petition warranted mandamus support. The court ascertained approval for NRDC’s mandamus petition using six-factor standards, or “TRAC factors”:
- The time agencies take to make decisions must abide by a rule of reason. (Courts deem a reasonable time frame for agency action in week or months, not years);
- Congress has provided a time frame it expects the agency to establish a law, that legal scheme may supply content for this rule of reason;
- Delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;
- The court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;
- The court should also consider the nature and extent of the interests influenced by delay;
- The reasoning behind the lack of agency activity does not need to be malicious for the court to determine a delay in agency action irrationally.
TRAC factors analyzed similarities between the current NRDC petition, and three prior petitions, within the last five years – two of which also involved different organophosphates.
The court ruling approved NRDC’s petition for a writ of mandamus on all six TRAC factors. Reasonableness of EPA’s delay was the most important factor, as over a decade passed since NRDC’s initial petition. EPA only acted when provoked by NRDC or courts and consistently missed set deadlines. Although EPA maintained that the agency accomplished sensible progress during the lapsed time-period, the court concluded that whether delays are from 2009 or 2017, “EPA has stretched the ‘rule of reason’ beyond its limits.” The U.S. Court of Appeals ruled that all six-factors favored approval for writ of mandamus and granted NRDC’s request. The action ordered EPA to deny NRDC’s petition against TCVP or initiate a cancellation of TCVP within one year.
Over 85 million people in the U.S. have pets, and many of these pets wear flea collars containing TCVP. Tetrachlorvinphos (TCVP) is an organophosphate pesticide subgroup and derivative of World War II nerve warfare agents. Although TCVP use in household products concludes in 2006, one TCVP product remains on the market for residential use in pet products. TCVPs accumulate on pets’ fur via pet products (i.e., pest-prevention collars, shampoos, and sprays), and exposure to humans causes neurological damage and cancer. Also, children are most susceptible to TCVP poisoning as they are underdeveloped and more likely to ingest TCVP by touching their mouths after pet interaction. Since 50% of lifetime pesticide exposure transpires in the first five years of life, children are at disproportionate risk, and risk enhances when exposure occurs early in life. EPA’s 2016 risk assessment of TCVP corresponds with prior conclusions that TCVPs adversely affects human health, disproportionally affecting child health.
The ruling is the Ninth Circuit’s fourth issuing of a writ of mandamus on delays in federal agency action in the past five years. Approval of this mandamus and predecessors alludes to the court’s weakening patience for significant delays in agency action on pesticide tolerance and registration. The U.S. Ninth Circuit Court of Appeals criticizes EPA’s postponed action as it, “frustrated NRDC’s ability to seek judicial review by withholding final agency action, all the while endangering the well-being of millions of children and ignoring its ‘core mission’ of ‘protecting human health and the environment.’” The success of NRDC’s mandamus action can encourage ecological and advocacy organizations to use mandamus more assertively to drive federal agency action for various petitions.
In addition to flea and tick collars exposing humans to TCVP, dietary exposure via water and food ingestion is an alternate toxicity pathway for TCVP through livestock use. There are also numerous occupational risks of exposure, affecting applicators, veterinarians, pet groomers, and livestock caretakers.
Safely kill flea and tick larvae with non-toxic solutions: vacuum daily during flea season (changing bag often); groom pet daily with a flea comb (cleaning comb with soap-water between brushes); frequently bathe pets with soap and water; and frequently wash pet bedding, restricting pet to only one bed. Learn more about how to protect your pet from pesticides, and the least-toxic controls for flea and tick infestation.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Source: JDSUPRA, NRDC, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
