Although the EPA dragged its feet for a decade on whether to ban the insecticide chlorpyrifos, “it has now done what we ordered it to do” and made a decision, said the federal appellate court in San Francisco. For that reason, the Ninth Circuit U.S. Court of Appeals refused to consider a lawsuit by two environmental groups contesting EPA administrator Scott Pruitt’s decision to keep the chemical, criticized as a risk to children and farm workers, available for use in agriculture.
“Now that EPA has issued its denial, substantive objections must first be made through the administrative process mandated by statute,” said the three-judge panel. “Only at that point may we consider the merits of EPA’s ‘final agency decision.'”
The environmental groups, Pesticide Action Network North America and Natural Resources Defense Council, petitioned EPA in 2007 to revoke food tolerances and cancel all registration for chlorpyrifos, used on more than 50 crops, including alfalfa, corn, peanuts and wheat. They sued the EPA in 2013 and 2014 to force EPA to act. The agency banned most home uses of chlorpyrifos in 2000 but allowed agricultural use to continue. It proposed in 2015 to effectively ban but did not finalize the regulation, leading the Ninth Circuit to set a deadline of March 31 for action.
Two days before the deadline, Pruitt issued a “final agency action” on chlorpyrifos, which would allow use to continue until 2022, when the EPA is next scheduled to evaluate the safety of the pesticide. The green groups said the agency did not provide new safety findings to justify its decision. The Ninth Circuit judges said the complaints “arrive at our door too soon.” The lawsuit is about the timing of a decision, not the substance of the decision, said the appellate court.
EPA’s decision on chlorpyrifos also has been challenged by seven states, including California and New York state. They say EPA failed to make a key safety finding to allow continued use of the insecticide.
To read the Ninth Circuit ruling, click here.