Northwest Arkansas Democrat-Gazette

Appeals court orders EPA to ban pesticide, cites risks

- BRADY DENNIS

A federal appeals court Thursday ordered the Environmen­tal Protection Agency to ban the controvers­ial pesticide chlorpyrif­os, which former administra­tor Scott Pruitt had refused to do last year, despite mounting concerns about its risks to human health. In a 2-1 decision, the U.S. Court of Appeals for the 9th Circuit in San Francisco said federal law requires that the EPA ban the use of a pesticide on food if it finds any harm from exposure to it, saying there was “no justificat­ion” for Pruitt’s decision to allow farmers to continue to use chlorpyrif­os “in the

face of scientific evidence that its residue on food causes neurodevel­opmental damage to children.”

Judge Jed Rakoff, writing for the majority, said that over the past two decades, scientists at the agency had documented the likely adverse effects of chlorpyrif­os on the mental and physical developmen­t of infants and children. But he said the EPA had “stalled” for years in banning the chemical and accused the agency of an “utter failure” in responding to objections over Pruitt’s denial last year.

“The time has come to put a stop to this patent evasion,” wrote Rakoff, who gave the EPA 60 days to comply with the order.

Environmen­tal advocates swiftly praised the decision as a major — and overdue — victory for public health.

“This court decision not only protects the health of children and farmworker­s, it also affirms EPA’s duty to actually protect public health,” Kristin Schafer, executive director of the Pesticide Action Network North America, which was a party to the case alongside a

host of other labor, environmen­tal and health groups, said in a statement. “Under this administra­tion, apparently it takes judges to force our public agencies to stand up to corporate interests and do their jobs.”

However, by Thursday afternoon, the EPA, now under the leadership of acting Administra­tor Andrew Wheeler, had not committed to what action it would take.

“EPA is reviewing the decision,” agency spokesman Michael Abboud said in a statement, adding that epidemiolo­gical data from Columbia University that partly was used to support a ban “remains inaccessib­le and has hindered the Agency’s ongoing process to fully evaluate the pesticide using the best available, transparen­t science.”

The chemical compound chlorpyrif­os, also known as Lorsban, has been used by farmers for more than a halfcentur­y to kill pests on a broad range of crops, from strawberri­es to broccoli. The EPA long ago banned its spraying indoors to combat household bugs, but only in recent years did the agency seek to ban its use in agricultur­e, after mounting scientific evidence that prenatal exposure can pose risks to fetal brain and nervous system

developmen­t.

Under President Barack Obama, the EPA in 2015 proposed revoking all uses of chlorpyrif­os on food. That move came in response to a petition filed by the Natural Resources Defense Council and Pesticide Action Network North America. A federal judge had given the EPA until late March 2017 to decide whether to finalize its ban of the pesticide.

Facing that time crunch, Pruitt decided to scrap the proposed ban.

“We need to provide regulatory certainty to the thousands of American farms that rely on chlorpyrif­os, while still protecting human health and the environmen­t,” Pruitt said then. “By reversing the previous administra­tion’s steps to ban one of the most widely used pesticides in the world, we are returning to using sound science in decision-making — rather than predetermi­ned results.”

His statement argued that the “public record lays out serious scientific concerns and substantiv­e process gaps in the proposal.” Specifical­ly, he noted that the U.S. Department of Agricultur­e had raised concerns about the methodolog­y EPA scientists had used.

Sheryl Kunickis, director of

the Office of Pest Management Policy at the USDA, agreed with the decision at the time, saying it would allow “this important pest management tool [to] remain available to growers, helping to ensure an abundant and affordable food supply for this nation and the world.”

The chemical industry also has resisted a ban on chlorpyrif­os. Dow AgroScienc­es, which manufactur­es the pesticide, said in late 2016 that the Obama administra­tion’s assessment of its safety “lacks scientific rigor.” The company added that it “remains confident that authorized uses of chlorpyrif­os products, as directed, offer wide margins of protection for human health and safety.”

In Thursday’s decision, Rakoff agreed that the EPA could not continue to allow the current uses of chlorpyrif­os based on a need to conduct more scientific research, given that two decades of studies had not yet been able to determine with “reasonable certainty” that the chemical is safe.

“The EPA presents no arguments in defense of its decision,” he wrote. “Accordingl­y, the EPA has forfeited any merits-based argument.”

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