Last Thursday a federal court took an extraordinary step by ordering EPA to revoke all tolerances and cancel all registrations for chlorpyrifos. This is to be done within 60 days.
This happened, despite the fact that USDA says it is a mistake to conclude chlorpyrifos is unsafe.
So what happened?
EPA argued that administrative process deprived the 9th Circuit Court of Appeals of jurisdiction. The court basically said nonsense to EPA. The San Francisco court said “…in light of the strong individual interest against requiring exhaustion and weak institutional interest in favor of it, petitioners need not exhaust their administrative objections and were not precluded from raising issues on the merits.“
In plain English, the court said that petitioners did not have to exhaust all of their administrative remedies, which is generally required.
The evidence against chlorpyrifos use is so overwhelming the court will act in EPA’s stead.
The 9th Circuit Court of Appeals was fed up with EPA’s delay regarding taking chlorpyrifos off the market. The court claimed EPA had been delaying a decision on this pesticide since 2007.
The arguments in this case have to do with arcane requirements of the Federal Food, Drug, and Cosmetic Act. This act allows EPA to have a tolerance for a pesticide chemical residue left on a food product which is deemed safe.
EPA and other regulations define safe as “…there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.”
The 9th Circuit Court said there was no reason to restrict itself to federal jurisdiction, which should be “excused” when it determined EPA had failed to regulate the use of a pesticide on foods. The 9th Circuit panel concluded chlorpyrifos created unreasonable adverse effects on the human diet caused from the risk of residues left on any food.
Chlorpyrifos is an organophosphate pesticide. It was used as a nerve gas during World War II and in 1965 it was approved for agricultural, residential and commercial pesticide. It kills insects by impacting an enzyme which acts as a neurotransmitter in various organisms, and of course, kills them.
EPA, in the past, has set chlorpyrifos tolerances for 80 food crops including fruits, nuts, and vegetables. In 2007 the Pesticide Action Network North America, Natural Resources Defense Council, Farm Worker Justice Green Latinos, National Hispanic Medical Association, United Farm Workers, and Attorneys General from Maryland, Vermont, Washington, Massachusetts, District of Columbia, and California filed a petition with scientific studies showing that “…children and infants who have been exposed prenatally to low doses of chlorpyrifos suffer harms such as reduced IQ, attention deficit disorder, and delayed motor development…”
Note that no Midwest or southern farm state Attorney General participated in this case, no farm group and no one from USDA.
In the past, EPA had cancelled all residential uses of chlorpyrifos but allowed the pesticide with extremely low tolerances to be used on food crops. The court relied on a 2008 EPA science-issued paper that “preliminarily” concluded that “…chlorpyrifos likely played a role in low birth rate and delays in infant mental development observed in human cohort studies.”
The court described an EPA science panel had concluded there was persuasive evidence that chlorpyrifos exposure above 1.0 mg/kg could lead to abnormal reflexes and development disorders in children.
The 9th Circuit panel of judges found EPA’s lack of judgment regarding responding to the petitioners’ request “egregious”.
In light of findings by EPA, the court tossed aside any jurisdiction concerns which are of interest only to the lawyers, and substituted its judgment for that of EPA. The court found there need not be an exhaustion of administrative remedies when piecemeal appeals could be avoided. The court claimed it could not excuse going through all the administrative steps when there is prejudice resulting from unreasonable and indefinite time frames set forth administrative action.
Only effective option
One reason for not canceling the use of chlorpyrifos is that it is the only effective option for control of borers in cherry and peach trees. Chlorpyrifos is the only control for ants for farmers in the citrus industry. USDA has been particularly critical of EPA’s health studies. USDA claimed EPA has used epidemiology data to reach conclusions regarding health data but has not released that data to USDA to review. EPA has claimed it does not have enough data on the health impact on chlorpyrifos and applies a default factor of 10. This means you come up with a residue number and lower it by 10 times.
USDA staff argues there is an enormous amount of data available for chlorpyrifos and that it is a mistake to conclude chlorpyrifos is unsafe.
Apparently, none of these arguments were before the panel of judges in the US Court of Appeals for the 9th Circuit. You must ask, in a case like this: who was defending the 40,000 farms and 50 different crops that desperately need chlorpyrifos?