13
Nov
Commentary and Action: Court Decision and History Calls into Question Value of Pesticide Law
(Beyond Pesticides, November 13, 2023) The news of a federal Appeals Court’s reversal of a U.S. Environmental Protection Agency (EPA) decision in early November calls into question the value of the basic structures, processes, and authorities of pesticide law that the public has been told are protective of health and the environment. After decades of review and litigation, this reversal, especially on a highly neurotoxic insecticide like chlorpyrifos, identifies a fundamentally flawed system that does not protect the health of people, in this case, children’s brains.
>>Tell your governor and mayor to adopt policies that support organic land management.
It was EPA’s finding that chlorpyrifos was destructive of the nervous system, particularly in children, and the functioning of the brain that led to an EPA-negotiated chemical company (Corteva/Dow Chemical) settlement in 1999 (took effect in 2000) that removed residential uses of chlorpyrifos from the market. The 2020 EPA decision, 21 years later, to stop agricultural uses followed another Appeals Court decision, departing from the agency’s usually long drawn-out negotiations that ultimately compromise health and the environment. EPA banned agricultural uses of chlorpyrifos in 2016 in the Obama Administration, but the decision was reversed by the Trump Administration in 2017. Because EPA’s decision was not negotiated but based on scientific facts showing unreasonable harm, the industry sued, which brings us to the current situation.
While litigation against EPA under current pesticide law is needed to call out the problems with inadequate protections, the fundamental inadequacies of the law ultimately need to be addressed. Realistically, however, the power of the chemical industry and its influence in the U.S. Congress has prevented the overhaul of the law that is required to eliminate chlorpyrifos and petrochemical pesticides in favor of organic land management or agricultural practices that are as productive and profitable as chemical-intensive practices.
Background. EPA’s action to cancel all agricultural uses of chlorpyrifos was a rare instance when the agency took protective action. Required by a 9th Circuit Court of Appeals decision in April 2021 to take action, EPA issued a final rule in August, 2021—in full effect February 28, 2022—after an earlier 9th Circuit decision, concluding that “EPA is unable to conclude that the risk from aggregate exposure from the use of chlorpyrifos meets the safety standard of the Federal Food, Drug, and Cosmetic Act (FFDCA). Accordingly, EPA is revoking all tolerances for chlorpyrifos.” On November 3, the 8th Circuit U.S. Court of Appeals decided to vacate EPA’s 2021 decision to cancel all food tolerances for chlorpyrifos and sent it back to the agency.
History of Failure. In other cases, EPA has avoided such litigation by taking more limited action. When the industry challenges EPA, the agency almost invariably capitulates through a negotiation process. With the chemical paraquat, EPA allowed an industry umbrella group dubbed the Agricultural Handler Exposure Task Force to correct its data risks posed to workers, resulting in the agency changing its position within months. With the synthetic pyrethroid class of insecticides, EPA allowed an industry group to rework its methodology for addressing pyrethroid risks to children and followed the request of another industry group to allow the pyrethroids to be sprayed with smaller buffer zones during windier conditions. With the chemical glyphosate, despite overwhelming evidence of its carcinogenic properties, the agency has refused to acknowledge this risk, even after a federal court chastised its review process, and instead has acted on the behest of chemical manufacturers to stop glyphosate from being banned in other countries.
The examples of this pattern are numerous, including the recent EPA decision to cancel the deadly chlorinated hydrocarbon wood preservative, pentachlorophenol, with dioxin contaminants, among others (see Pesticide Gateway), after it watched countries around the world one-by-one ban its use under an international treaty—the Stockholm Convention, which was never ratified by the U.S. With a severely diminished market worldwide and difficultly setting up a manufacturing shop in the U.S. after a community and state uproar in South Carolina, the manufacturer withdrew—after 40-plus years of fighting and unthinkable cases of cancer. EPA then announced in March of this year that it was time to cancel the chemical.
And even when EPA suspends the registration of a pesticide, removal from use is very slow because existing stocks are generally allowed to be sold. For example, EPA suspended the registration of the herbicide dimethyl tetrachloroterephthalate (DCPA) (also widely known as Dacthal), effective August 22, 2023, leaving existing stocks (products containing DCPA manufactured before August 22) available on the market.
These examples and more demonstrate that the “whack-a-mole” approach cannot adequately protect against the dangers of pesticides. What is required are policies at every level of government that encourage the adoption of organic agriculture and land management practices.
Organic management practices build soil health, cycle nutrients naturally, enhance plant resiliency, reduce water use, and do not use petrochemical pesticides or fertilizers. The organic alternative is central to a commitment to both the elimination of practices and products that are petrochemical-based and the ability of organically managed soils to draw down (sequester) atmospheric carbon, which contributes to mitigating global warming and erratic temperatures.
States should adopt a strategy promoting natural and working lands as a critical yet currently underutilized sector in the fight against climate change. These lands can sequester and store carbon emissions, limit future carbon emissions into the atmosphere, protect people and nature from the impacts of climate change, and build resilience to future climate risks. Climate smart management of natural and working lands also improves public health and safety, secures our food and water supplies, and increases equity.
The strategy should define the state’s natural and working landscapes; describe how these lands can deliver on climate change goals; highlight priority nature-based climate solutions to address the climate crisis; explore opportunities for regional climate smart land management; identify options to track nature-based climate action and measure progress; and outline opportunities to scale climate smart land management across regions and sectors in the state. States should set a pesticide-free goal for state parks.
To be effective, the strategy must include ambitious targets focused on reduction of agricultural chemicals and support for organic agriculture. These measures also address other crises, including microbial support for ecosystem health and biodiversity. Industrial farming systems dependent on synthetic fertilizers and other chemical inputs must be replaced with organic systems that do not use chemicals in which animals and feed sources are fully integrated.
Many communities are already adopting organic land management in parks, playing fields, and other public lands. Beyond Pesticides partners with a major organic retailer, Natural Grocers, and organic food company, Stonyfield Organic, and dozens of communities in all regions of the country to see this vision come to life. Natural land care is becoming increasingly popular at the local level, with more and more communities looking to employ practices that protect workers, public health, pets, pollinators, and unique local environments that can be harmed by unnecessary pesticide use. At the same time, community leaders are increasingly challenged with staffing constraints and tight budgets. Beyond Pesticides’ Parks for a Sustainable Future program aims to bridge these gaps, allowing communities to pilot the transition to organic land care on two public sites.
Program pilot sites provide local land care officials the time needed to dial in new practices and work out any unexpected factors that may impede the move from conventional to organic land care. They send a message to residents that the community is taking meaningful action to protect their health and environment at a lower cost to community coffers than a rapid, full-scale transition to organic land care that local pesticide reform policies are increasingly requiring.
>>Tell your governor and mayor to adopt policies that support organic land management.
Sign up to be a Parks Advocate today to encourage your community to transition to organic land management. Plan on attending Session 3 of the National Forum, Transformative Community-Based Change from the Ground Up: Managing Parks and Playing Fields with Organic Practices and Policies, on November 29, 2023, at 2:00 pm Eastern. Speaker and registration information HERE. This session is for all who want beautiful landscapes, parks, and playing fields without the reliance on petrochemical pesticides and fertilizers. The subject matter is cross-cutting and will inform people concerned about their health and community health, elected officials (from town, city, county, regional, state to school boards) interested in effecting movement away from toxic chemical reliance, and land managers and landscapers who work in parks and on playing fields and other landscapes.
Letter to Governor:
As shown by the recent court decision overturning EPA’s attempt to cancel agricultural uses of highly neurotoxic insecticide chlorpyrifos, the pesticide regulatory process is broken and cannot protect people or the environment from the dangers of their use. As a result, we need policies at the state and local level that move toward organic land management in agriculture, communities, and homes.
EPA’s action to cancel all agricultural uses of chlorpyrifos was a rare instance when the agency took protective action. Required by a 9th Circuit Court of Appeals decision in April 2021 to take action, EPA issued a final rule in August, 2021—in full effect February 28, 2022—after an earlier 9th Circuit decision, concluding that, “EPA is unable to conclude that the risk from aggregate exposure from the use of chlorpyrifos meets the safety standard of the Federal Food, Drug, and Cosmetic Act (FFDCA). Accordingly, EPA is revoking all tolerances for chlorpyrifos.” On November 3, the 8th Circuit U.S. Court of Appeals decided to vacate EPA’s 2021 decision to cancel all food tolerances for chlorpyrifos and sent it back to the agency.
In other cases, EPA has avoided such litigation by taking more limited action. When the industry challenges EPA, the agency almost invariably capitulates, as in the case of paraquat, when EPA allowed an industry umbrella group dubbed the Agricultural Handler Exposure Task Force to correct its data risks posed to workers, resulting in the agency changing its position within months.
The examples of this pattern are numerous, and even when EPA suspends the registration of a pesticide, removal from use is very slow because existing stocks are generally allowed to be sold. For example, EPA suspended the registration of the herbicide dimethyl tetrachloroterephthalate (DCPA) (also widely known as Dacthal), effective August 22, 2023, leaving existing stocks (products containing DCPA manufactured before August 22) available on the market.
History shows the failure of the “whack-a-mole” approach to pesticide regulation.
States should adopt a strategy promoting natural and working lands as a critical yet currently underutilized sector in the fight against climate change. These lands can sequester and store carbon emissions, limit future carbon emissions into the atmosphere, protect people and nature from the impacts of climate change, and build resilience to future climate risks. Climate smart management of natural and working lands also improves public health and safety, secures our food and water supplies, and increases equity.
The strategy should define the state’s natural and working landscapes; describe how these lands can deliver on climate change goals; highlight priority nature-based climate solutions to address the climate crisis; explore opportunities for regional climate smart land management; identify options to track nature-based climate action and measure progress; and outline opportunities to scale climate smart land management across regions and sectors in the state. States should set a pesticide-free goal for state parks.
To be effective, the strategy must include ambitious targets focused on reduction of agricultural chemicals and support for organic agriculture. These measures also address other crises, including microbial support for ecosystem health and biodiversity. Industrial farming systems dependent on synthetic fertilizers and other chemical inputs must be replaced with organic systems that do not use chemicals in which animals and feed sources are fully integrated.
I urge you to take the lead in creating policies that move our state to organic agriculture and land management.
Thank you.
Letter to Mayor:
As shown by the recent court decision overturning EPA’s attempt to cancel agricultural uses of chlorpyrifos, the pesticide regulatory process is broken and cannot protect people or the environment from the dangers of their use. As a result, we need policies at the state and local level that move towards organic land management in agriculture, communities, and homes.
EPA’s action to cancel all agricultural uses of chlorpyrifos was a rare instance when the agency took protective action. Required by a 9th Circuit Court of Appeals decision in April 2021 to take action, EPA issued a final rule in August, 2021—in full effect February 28, 2022—after an earlier 9th Circuit decision, concluding that, “EPA is unable to conclude that the risk from aggregate exposure from the use of chlorpyrifos meets the safety standard of the Federal Food, Drug, and Cosmetic Act (FFDCA). Accordingly, EPA is revoking all tolerances for chlorpyrifos.” On November 3, the 8th Circuit U.S. Court of Appeals decided to vacate EPA’s 2021 decision to cancel all food tolerances for chlorpyrifos and sent it back to the agency.
In other cases, EPA has avoided such litigation by taking more limited action. When the industry challenges EPA, the agency almost invariably capitulates, as in the case of paraquat, when EPA allowed an industry umbrella group dubbed the Agricultural Handler Exposure Task Force to correct its data risks posed to workers, resulting in the agency changing its position within months.
The examples of this pattern are numerous, and even when EPA suspends the registration of a pesticide, removal from use is very slow because existing stocks are generally allowed to be sold. For example, EPA suspended the registration of the herbicide dimethyl tetrachloroterephthalate (DCPA) (also widely known as Dacthal), effective August 22, 2023, leaving existing stocks (products containing DCPA manufactured before August 22) available on the market.
History shows the failure of the “whack-a-mole” approach to pesticide regulation.
Many communities are already adopting organic land management in parks, playing fields, and other public lands. Beyond Pesticides partnering with major retailers like Natural Grocers and Stonyfield Organic, and dozens of communities in all regions of the country to see this vision come to life. Natural land care is becoming increasingly popular at the local level, with more and more communities looking to employ practices that protect workers, public health, pets, pollinators, and unique local environments that can be harmed by unnecessary pesticide use. At the same time, community leaders are increasingly challenged with staffing constraints and tight budgets. Beyond Pesticides’ Parks for a Sustainable Future program aims to bridge these gaps, allowing communities to pilot the transition to organic land care on two public sites.
Program pilot sites provide local land care officials the time needed to dial in new practices and work out any unexpected factors that may impede the move from conventional to organic land care. They send a message to residents that the community is taking meaningful action to protect their health and environment, at a lower cost to community coffers than a rapid, full-scale transition to organic land care that local pesticide reform policies are increasingly requiring.
Please ensure that all land (parks, playgrounds, playing fields, etc.) in our area is managed with organic practices that eliminate fossil fuel-based toxic pesticides and fertilizers. Where these practices are in place, I would appreciate a report to the community. Where organic practices are not being utilized, I request that a plan be put in place to transition—as part of a community effort to protect health and biodiversity, and to fight the climate crisis. Now is the time that we must all join together to do our part to curtail petroleum-based pesticides and fertilizers and sequester atmospheric carbon in the soil through effective organic practices.
Thank you.
