On April 29, the Ninth Circuit (federal) Court of Appeals issued an important ruling on national pesticide regulation, directed at the controversial organophosphate insecticide chlorpyrifos. The order directs the Environmental Protection Agency (EPA) to act within 60 days to either announce an enforceable safe exposure level for use, or to ban the pesticide. The case, League of United Latin American Citizens (LULAC) v. Regan, interprets and applies the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), and related authority under the Federal Food, Drug, and Cosmetic Act (FFDCA). This decision is the latest step in controversies dating to 2006, involving years of EPA inaction spanning the Obama and Trump administrations.
What’s the regulatory and litigation history of Chlorpyrifos?
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 those tolerances, arguing that EPA had not considered all available information, and had missed its duty to make specific consideration of risks to infants and children. EPA did not respond, and after 5 years 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.
EPA responded in November 2015 with 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 deferred a revocation decision until after 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 argued that the court did not (yet) have jurisdiction to hear the latest round, since EPA had not yet responded to the plaintiffs’ administrative objections to its 2017 order. In August 2018 the majority of a 3-judge panel of the Ninth Circuit ordered EPA to revoke the tolerances for chlorpyrifos, and cancel the pesticide’s registration within 60 days. The decision found jurisdiction, and interpreted EPA’s long recitations of scientific uncertainty to mean the agency had failed its statutory duty to issue or maintain a tolerance only if there is a “reasonable certainty” of safety. (I wrote about the 2018 decision HERE). EPA appealed the panel’s order, and in March 2019 the entire Circuit Court issued an order to EPA to rule on the administrative objections to its 2017 order within 90 days. In July 2019, EPA issued its ruling rejecting the objections to its 2017 order, while renewing statements about scientific uncertainties that justified delays.
What is the latest round, including the new Ninth Circuit decision?
The plaintiffs returned to court, appealing the 2019 rejection of their objections to the 2017 order, and renewing their legal and factual arguments. The Ninth Circuit’s April 2021’s 116 page decision analyzes the statutory requirements of FIFRA and FFDCA, which it applies to the last 15 years of EPA’s actions and inactions involving chlorpyrifos. Accordingly, the majority opinion:
Vacates EPA’s 2017 Order and 2019 Order
Remands the matter to EPA, with instructions to
grant the 2007 Petition;
issue a final regulation within 60 days after the Court’s order that either
revokes all chlorpyrifos tolerances, or
modifies chlorpyrifos tolerances and simultaneously certifies that the modified tolerances meet FIFRA safety standards
modify or cancel related FIFRA registrations for food use in a timely fashion
Note that this order is substantially the same as the Ninth Circuit’s panel decision in 2018.
As of this writing, EPA has not responded to the latest order. EPA can comply, or seek reconsideration from this 3-judge panel, or petition the ninth Circuit for en banc review by all the Circuit’s judges. The agency’s decision will provide important indications of how pesticide regulation will proceed during the Biden Administration – remembering that EPA’s ongoing decisions not to decide about chlorpyrifos began in 2006-2007 during the Bush Administration, and spanned the full terms of the Obama and Trump Administrations. If EPA complies, it won’t just be 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.
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?
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About the Author
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: email@example.com