The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) empowers the Environmental Protection Agency (EPA) to define and regulate pesticides meeting statutory qualifications, providing extensive procedural directions how to do so. In addition, the Federal Food, Drug, and Cosmetic Act (“FFDCA”) authorizes EPA to regulate the use of pesticides on foods according to specific statutory standards, and grants EPA limited authority to establish tolerances for pesticide residuals on foods. These directions govern EPA’s analyses of applications for registration, ongoing evaluations of evolving scientific understanding and practical experience with pesticides that have been registered, and response to public comments and petitions (I provided a basic summary of FIFRA registration procedures here).
EPA’s regulatory activities often include sharply divergent advocacy by industrial applicants for registrations, agricultural interests who hope to apply the pesticides to crops, and public and environmental health advocates with concerns about side-effects and residual contamination. (I wrote about neonicitinoid pesticides and bees here). On August 9, 2018, the Ninth Circuit Court of Appeals issued an order in another such controversy, ordering EPA to revoke tolerances for chlorpyrifos, an organophosphate widely used on corn and other crops (League of United Latin American Citizens (LULAC) v. Wheeler). This decision is the latest step in a controversy that dates back to 2007, spanning the administrations of George W. Bush, Barack Obama, and now Donald Trump. As such, it’s useful reading both for how law and science and administrative politics relate, and for the very long time that administrative changes can take.
What’s the Administrative and Litigation History of This Controversy?
EPA first registered chlorpyrifos as a FIFRA pesticide in 1965, and has conducted several formal reviews during the intervening decades. The current controversy began after EPA completed a periodic review of available information and issued a “Reregistration Eligibility Decision for Chlorpyrifos” in July 2006. The report identified a variety of hazards (primarily overstimulation to the nervous system), noted restrictions on home use already established in 2000 and defined occupational risk mitigation measures, and found the chemical’s hazards would be acceptable if required measures were followed.
In September 2007, the Natural Resources Defense Council (NRDC) and Pesticide Action Network North America (PANNA) petitioned EPA to revoke the tolerances, asserting that EPA had not considered all available information, and had missed a duty to make specific consideration of risks to infants and children. EPA did not respond, and the petitioners sued in 2012 to force action. EPA issued (partial) interim responses to this petition, in 2012 and 2014, but the Ninth Circuit issued a decision in 2015 finding the delays “egregious” and ordered a full and final response.
In November 2015 EPA issued a proposal to revoke the chlorpyrifos tolerance. However, in March 2017 (after the beginning of President Trump’s administration) EPA reversed its position and issued a decision finally denying the 2007 petition in full. Rather than revoking its earlier determination that the evidence did not allow a clear determination that the statutory standard was met, EPA decided not to revoke the tolerances until after completing its next review of chlorpyrifos’ registration, due by October 2022.
The plaintiffs renewed their litigation, pointing to the long delays and claiming that EPA’s final ruling did not fully address their petition and the applicable statutory standards. EPA defended itself by saying that the court did not (yet) have jurisdiction to hear the latest round, since EPA had not responded to the plaintiffs’ administrative objections to its 2017 order.
What Has the Ninth Circuit Decided?
The August 2018 decision – signed by 2 judges, with the third dissenting -- orders EPA to revoke the tolerances for chlorpyrifos, and cancel the pesticide’s registration within 60 days. The majority finds that the court does have jurisdiction to hear the latest round, and that having done so it finds that EPA’s long recitations of scientific certainty mean that the agency has failed to meet its statutory requirement to issue or maintain a tolerance only if there is a “reasonable certainty” that the tolerance level is safe (21 U.S.C. § 346a(b)(2)(A)(i)-(ii)). The dissenting judge agreed with the jurisdictional claim and would have let EPA conduct its administrative response to the petitioners’ objections to its 2017 order.
Now What?
EPA can now seek reconsideration from this 3-judge panel, or petition the ninth Circuit for “en banc” review by all the Circuit’s judges. Or EPA could appeal to the Supreme Court. In either of those situations I assume the agency would ask for a stay of the order, leaving the pesticide registration in place. Or the agency could accept the order and move to ban the pesticide, in which case I assume the registrants would object and seek a stay of the order while their case proceeds.
If the order stands, it’s not just critical to the narrow case of this one pesticide. It would also affirm the broader point that pesticide tolerances must be found “safe”, not that they can continue unless they’re found unsafe. This would affirm EPA’s responsibility to move forward in a timely fashion when scientific evidences is incomplete and evolving … that is, in most situations.
Self-Assessment Checklist
Does the organization manufacture, sell, or use chlorpyrifos?
Does the organization manufacture, sell, or use another pesticide subject to FIFRA and FFDCA provision for pesticide residue tolerances?
Where Do I Go For More Information?
● LULAC v. Wheeler decision (9th Circuit, 8/9/18)
● EPA pesticide registration webpage
● EPA chlorpyrifos webpage
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About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing Environmental Compliance: A Simplified National Guide and The Complete Guide to Environmental Law.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com