04
May
Federal Court Gives EPA 60-Day Deadline to Decide the Fate of Chlorpyrifos
(Beyond Pesticides, May 4, 2021) The U.S. Environmental Protection Agency (EPA) has less than two months to determine whether cancel or modify its registration of the brain-damaging, organophosphate insecticide chlorpyrifos, following a decision from a federal appeals court last week. The ruling comes after more than a decade of delay from the federal agency tasked with protecting public health and the environment from the hazards of chemicals like chlorpyrifos. The decision now falls to the Biden Administration’s EPA Administrator Michael Regan, after the previous administration reversed a proposal to ban agricultural uses of chlorpyrifos in 2017. Most residential uses of the chemical were banned in 2000.
“The EPA has had nearly 14 years to publish a legally sufficient response to the 2007 Petition,” reads a 2-1 opinion from the U.S. Court of Appeals for the 9th Circuit in San Francisco. “During that time, the EPA’s egregious delay exposed a generation of American children to unsafe levels of chlorpyrifos.”
Chlorpyrifos is an organophosphate insecticide that is currently registered for use on a range of food crops, golf courses, and for public health mosquito control (in cases of mosquito-borne diseases). It is highly acutely toxic, causing numbness, tingling sensation, in-coordination, dizziness, vomiting, sweating, nausea, stomach cramps, headache, vision disturbances, muscle twitching, drowsiness, anxiety, slurred speech, depression, confusion and in extreme cases, respiratory arrest, unconsciousness, convulsions, and death. Chronic low-level exposure to the chemical through food residue and other sources is particularly dangerous for pregnant mothers and their children. In utero exposures to chlorpyrifos can impair a child’s learning ability and increase risk of developmental delays, ADHD, and is associated with IQs that are up to 7 points lower than those with little or no chlorpyrifos exposure.
EPA has known for decades about the dangers posed by chlorpyrifos use. In 2000, the agency negotiated an agreement with Dow AgroSciences to eliminate all residential uses of the insecticide due to risks to children, permitting use only by certified applicators. However, because the agency allowed other uses to continue, U.S. residents have been chronically exposed to chlorpyrifos residue on food for nearly two decades. In 2007, a lawsuit launched by Pesticide Action Network North America (PANNA) and the Natural Resources Defense Council (NRDC) urged EPA to cancel all remaining agricultural uses of the insecticide. It took nearly a decade for a response. The Obama Administration EPA provided one at the end of its term (only after pressure from the courts), but did not finalize the decision, ultimately leaving it to the next Administration to make a determination.
In 2016, Scott Pruitt became EPA administrator under President Trump, and reversed the order, rejecting the conclusions of the agency’s own scientists and raising serious concerns around conflict of interest with the pesticide’s primary registrant, Dow Chemical. The next several years saw a flurry of activity in the Courts, Congress, and individual states. Lawsuits were launched to challenge EPA’s decision, U.S. Representative Nydia Velásquez (D-NY) introduced The Ban Toxic Pesticides Act, H.R.230, Senator Tom Udall (D-NM) introduced the Protect Children, Farmers and Farmworkers from Nerve Agent Pesticides Act of 2019, S921, and the states of Hawaii, California, Maryland, and New York initiated state-level restrictions on chlorpyrifos use. In early 2020, Corteva (DowDuPont) provided notice that it would stop producing chlorpyrifos by the end of the year.
Despite all of these actions, one of the final acts of the Trump Administration EPA was to propose reregistering the insecticide with very few changes to its use patterns. But as the 9th Circuit Judges note in their ruling that EPA never truly responded to the 2007 petition initiated by health advocates. Its denial of that petition and rejection of the petitioners’ objections were, according to the court, “…just one more attempt at delay…” The court notes that despite EPA studying chlorpyrifos for over a decade, the agency has not been able to conclude that current uses meet statutory requirements that the chemical is not causing harm to public health or the environment. “Yet, rather than ban the pesticide or reduce the tolerances to levels that the EPA can find are reasonably certain to cause no harm, the EPA has sought to evade, through one delaying tactic after another, its plain statutory duties,” the ruling reads.
The court set a hard deadline on the agency, which the judges appeared to indicate was particularly lenient given the circumstances. EPA now has 60 days to either modify the food tolerances (allowed levels of the chemical on food) of chlorpyrifos and publish a finding that the new tolerances are safe for infants and children, or revoke all tolerances. The agency must also determine whether to modify or cancel registration of the chemical for food use under federal pesticide law.
Chlorpyrifos is a poster child for the problems with federal pesticide regulation. Despite overwhelming data, including evidence that the original research EPA relied upon the register the chemical was flawed, the material has been permitted to remain in regulatory limbo. The weakness of federal statutes allowed the Obama EPA to delay and kick the can to the next administration. And an industry-friendly EPA was able to keep the product on the market decades after data supporting the elimination of its use had been established.
Moreover, chlorpyrifos is just one of numerous organophosphate class chemicals remaining on the market. These WW2-era nerve agents – relics of the past, and according to advocates, have no place in 21st century agriculture and should have already been eliminated from use. But Beyond even the organophosphates lie a number of insecticides that the chemical-intensive farming will utilize other toxic substitutes. This toxic treadmill, with the increased use of bee-toxic neonicotinoid and highly hazardous synthetic pyrethroids, becomes a Faustian bargain for farmers who rely on toxic chemicals that are harmful to health and the environment.
For these reasons it is critical that the elimination of any one particular chemical be seen as an indictment of chemical farming as a whole. It is not acceptable to constantly weigh the evils of one hazardous chemical or another when other systems that do not rely on these products exist. Organic farming eliminates highly toxic synthetic pesticides in favor of practices that enhance biodiversity and soil health. Like the move away from fossil fuel dependent energy and toward renewable systems, organic practices will be the future of farming in the 21st century.
Get prepared for our organic future by learning more about the benefits of organic agriculture. Attend Beyond Pesticides first ever Virtual National Pesticide Forum, starting May 24 and 25, and running each Tuesday until June 15. You’ll hear from those on the cutting edge of organic practices, such as Jeff Moyer, CEO at Rodale Institute, which showed through a 30 year trial the multitude of benefits organic systems provide for the economy, health, and the environment.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Source: Associated Press, U.S. Court of Appeals for the 9th Circuit in San Francisco
