14
Nov
Celebrated 2021 Ag Ban of Deadly Pesticide, Chlorpyrifos, Reversed by Court Despite Decades of Review and Litigation
(Beyond Pesticides, November 14, 2023) One of the Environmental Protection Agency’s (EPA) strongest tools for avoiding responsibility is delay—a tactic that kept cancellation of the neurotoxic pesticide chlorpyrifos at bay for 21 years—until May 2021, when a three-judge panel of the Ninth Circuit Court of Appeals, responded to a petition filed in 2007 by the Natural Resources Defense Council, Pesticide Action Network, and numerous other groups. The Ninth Circuit ordered the agency to quit lollygagging and acknowledge chlorpyrifos’s threat to human health, something the agency had acknowledged already. The Ninth Circuit instructed EPA to either revoke the “safe” tolerances the agency had set for chlorpyrifos’s residue in various foods or demonstrate that they are actually safe. Finally capitulating, EPA issued a final rule in August 2021 revoking all food tolerances for the neurotoxicant.
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This looked like progress until February 2022, when a different set of petitioners—pesticide companies, U.S. farmer groups, and other countries’ agricultural interests—filed an action in the Eighth Circuit Court of Appeals. On November 3 of this year, a three-judge panel of the Eighth Circuit reversed EPA’s decision, thereby neutralizing the Ninth Circuit’s opinion.
Chlorpyrifos, a member of the organophosphate chemical family that also contains chemical weapons, inhibits acetylcholinesterase (AChE), an enzyme crucial for transmitting nerve signals in humans. This function is very similar in other species, including insects, which means that the effects of chlorpyrifos on insects are similar to the effects on humans. It has long been evident that the residue tolerances for chlorpyrifos in food products were not protective of human health, especially for pregnant women, fetuses, and young children. EPA’s own 2016 Human Health Assessment found that 1-to-2-year-olds ingest 14,000 percent of the levels EPA deems safe.
Exposure to chlorpyrifos in the womb and in early childhood can lead to many cognitive problems, including lowered IQ, attention deficits, and learning disabilities. There is some evidence that organophosphate pesticides, including chlorpyrifos, can affect blood glucose, body weight, and lipid structures, meaning that the pesticide may also be an obesogen. A very recent study published on October 17 found an association between organophosphate metabolites and adult asthma. Beyond Pesticides covered this issue here.
Epidemiological studies have suggested that measurements of chlorpyrifos used to assess exposure levels may not capture its effects on the rapidly developing brain of a fetus. A 2012 EPA Scientific Advisory Panel–one of at least four EPA has convened on chlorpyrifos since 2007–also suggested that the damage to fetuses and children comes through a different pathway from the one blamed for neurotoxic effects in adults. Academic researchers have found at least one signaling pathway related to brain development that operates independently of the AchE mechanism, an issue even EPA acknowledged.
EPA has taken confusing positions on chlorpyrifos for decades. (See Beyond Pesticides’ commentary for a full summary.) The agency banned chlorpyrifos for residential uses in 2000. With each Human Health Risk Assessment—five of which were undertaken between 2008 and 2020—EPA admitted more harms from chlorpyrifos exposure. In 2015, during Barack Obama’s presidency, EPA proposed rescinding all the food tolerances, but that idea was upended as soon as Donald Trump’s EPA administrator, Scott Pruitt, took office in early 2017. Two years later, EPA denied the petition filed in 2007 by the NRDC and others. Only under the order of the Ninth Circuit did EPA finally rescind all food tolerances in 2021.
The Ninth Circuit’s majority opinion (one judge dissented) recited a painful chronology of the agency’s refusal to confront chlorpyrifos’s toxicity over nearly two decades. The Ninth Circuit observed that “this Court issued multiple writs of mandamus requiring the EPA to move forward,” all ignored by the agency.
“Chlorpyrifos has been before this Court more than a half-dozen times,” the opinion states, yet “EPA has failed to act, requesting extension after extension….In short, the EPA has spent more than a decade assembling a record of chlorpyrifos’s ill effects and has repeatedly determined, based on that record, that it cannot conclude…that the present tolerances are causing no harm….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.”
In contrast, the Eighth Circuit’s opinion gives EPA yet another excuse for delay. The court’s championing of chlorpyrifos is also somewhat dissonant considering that in the U.S. there is only one chlorpyrifos manufacturer left, residential use is banned, and non-residential uses such as on golf courses have been declining. Further, California has banned all uses, as have Oregon, Hawaii, New York, and Maryland.
The opinion itself has a tone that is directly oppositional to the Ninth Circuit’s recitation of delays, emphasizing instead the purported pressure from the Ninth Circuit on EPA to decide quickly under pressure. The Eighth Circuit pushes back with rhetoric implying that the Ninth Circuit, NRDC, and its co-petitioners used onerous deadlines to browbeat EPA and prevent the agency from completing its scientific analysis and decision making, citing “[T]he short “window for issuing [a] rule” and the Ninth Circuit’s “directive not to engage in additional fact-finding or further delay….The EPA had to act quickly…Time eventually ran out. The environmental groups grew impatient.”
This rhetoric has no basis in fact. The reality is that EPA has delayed a dispositive decision for almost a generation.
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EPA’s motto, according to the Ninth Circuit, must be festina lente—that is, it has tried to cite the beneficial concept of measured and comprehensive analysis to cover up its procrastination. But in the short interval between EPA’s rule banning chlorpyrifos and the Eighth Circuit’s intervention, another principle has been demonstrated. Earthjustice Senior Attorney Patti Goldman noted in a press release that “[C]rops have been successfully grown in the two years since chlorpyrifos has been banned.” She added, “The need for any use of chlorpyrifos has been refuted.”
EPA’s decision making, delaying tactics, and contradictory policies are not confined to chlorpyrifos. “Chlorpyrifos, glyphosate, 2,4-D, atrazine, and many others are poster children for a failed regulatory system that props up chemical-intensive agriculture despite the availability of alternative organic practices not reliant on these toxic chemicals,” says Jay Feldman, executive director of Beyond Pesticides. “We have to end use of petrochemical pesticides and fertilizers and not just chase individual pesticides in an unending battle that allows the pesticide treadmill to continue destroying agriculture and harming farmworkers, farmers, and people generally.”
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Sources:
Opinion, United States Court of Appeals for the Ninth Circuit, No. 19-71979, EPA No. EPA-HQ-OPP-2007-1005
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/29/19-71979.pdf
Order Granting Petition for Review of an Order of the Environmental Protection Administration, No. 22-1422
https://law.justia.com/cases/federal/appellate-courts/ca8/22-1422/22-1422-2023-11-02.html
Chlorpyrifos; Tolerance Revocations – A Rule by the Environmental Protection Agency on 08/30/2021
https://www.federalregister.gov/documents/2021/08/30/2021-18091/chlorpyrifos-tolerance-revocations
In Shocking Decision, 8th Circuit Sends Chlorpyrifos Food Use Ban Back to EPA
https://earthjustice.org/press/2023/in-shocking-decision-8th-circuit-sends-chlorpyrifos-food-use-ban-back-to-epa
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