After blasting the EPA for “13 years of interminable delay,” the federal appeals court in San Francisco on Thursday set a 60-day deadline for the agency to either ban agricultural use of the pesticide chlorpyrifos or set newer and safer exposure levels for the chemical. The dissenter in the 2-1 decision said the short time frame “virtually guarantees” a ban.
“By remanding back to the EPA one last time, rather than compelling the immediate revocation of all chlorpyrifos tolerances, the court is itself being more than tolerant,” said the decision. “But the EPA’s time is now up.”
Regulators cut off residential use of the organophosphate pesticide two decades ago. First marketed in 1965, chlorpyrifos is commonly used in agriculture, most prominently on corn but also on soybeans, cotton, vegetables, and fruit and nut trees. It has been linked to learning disorders and can cause nausea, dizziness, and confusion.
Environmentalists petitioned in 2007 for an agricultural ban. Chlorpyrifos has been the subject of regulatory and judicial tussles ever since. The EPA was moving toward the elimination of its agricultural use a few years ago, but the Trump administration reversed course. “We need to provide regulatory certainty to the thousands of American farms that rely on chlorpyrifos while still protecting human health and the environment,” said Scott Pruitt, EPA chief at the time.
The appellate ruling on Thursday was the result of a 2019 lawsuit by environmental, labor, and health groups after the EPA put off a decision on chlorpyrifos. In the interim, regulators in California, Hawaii, and New York phased out use of the pesticide. Corteva, the largest manufacturer of chlorpyrifos, said it would halt production by the end of 2020, citing a steep decline in demand since the late 1990s. There were at least three other makers.
“EPA is reviewing the decision as it considers its options,” said a spokesman. “EPA will continue to use sound science in the decision-making process” as dictated by law.
“It would be unconscionable for EPA to expose children to this pesticide for any longer,” said Patti Goldman of Earthjustice, an environmental law firm. “EPA must now follow the law, ban chlorpyrifos, and protect children and farmworkers from a pesticide we know is linked to numerous developmental harms.”
Judges Jed Rakoff and Jacqueline Nguyen pointed to repeated studies indicating that low levels of exposure to chlorpyrifos could be harmful to neurological development. “Therefore, by statutory definition, the present tolerances are not safe. Accordingly, the EPA’s obligation is clear: It must modify or revoke chlorpyrifos tolerances and modify or cancel chlorpyrifos registrations,” they said in the majority opinion. Considering the scientific evidence in the case, “it may well be that EPA cannot make such a determination” of a safe tolerance level.
“The EPA has had nearly 14 years to publish a legally sufficient response to the 2007 Petition. During that time, the EPA’s egregious delay exposed a generation of American children to unsafe levels of chlorpyrifos,” wrote Rakoff and Nguyen in setting the deadline.
To read the appellate decision, click here.