EPA Wants Full Chlorpyrifos Rehearing

DOJ Attorneys Make Case Ninth Circuit Unable to Order Cancellation of Insecticide

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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The EPA is challenging an appeals court order to cancel all registrations of chlorpyrifos. (DTN file photo)

OMAHA (DTN) -- A panel of federal appeals court judges in August ordered the EPA to cancel all chlorpyrifos registrations. Now the agency is asking the court for a rehearing.

In a petition filed on Monday in the U.S. Court of Appeals for the Ninth Circuit in San Francisco, the EPA asked for an en banc hearing, or a hearing before all the judges on the Ninth Circuit. En banc hearings are reserved for cases that are particularly complex.

Chlorpyrifos is the main ingredient in Dow AgroSciences' Lorsban insecticide, which targets pests such as soybean aphids, spider mites and corn rootworm.

On Aug. 9, 2018, a panel of judges on the court ordered EPA to cancel all chlorpyrifos registrations in 60 days. The court ruled the agency was not justified in maintaining the insecticide's registration "in the face of scientific evidence that its residue on food causes neurodevelopmental damage to children."

If the court order stands, that means chlorpyrifos' registration would end on Oct. 9.

Attorneys with the U.S. Department of Justice argue in the new petition that the law requires the court to allow the EPA to reconsider the insecticide's registration.

"The panel's order limiting EPA's options on remand conflicts with Supreme Court precedent holding that where an agency's order is not sustainable on the record, a court should vacate the underlying decision and remand for further consideration by the agency, rather than directing specific action," the petition said.

In addition, the petition argues the court's revocation of the registration is in conflict with cancellation requirements laid out in the Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA.

The legal pursuit began in 2007 when the Pesticide Action Network North America and the Natural Resources Defense Council petitioned EPA to cancel chlorpyrifos registrations.

U.S. Secretary of Agriculture Sonny Perdue said in a statement the court was wrong to order a total ban of chlorpyrifos.

"The costs of an incorrect decision on chlorpyrifos are expected to be high and would cause serious impacts to American farmers working to feed, fuel, and clothe the United States and the world," he said. "This ruling, which would mean the sudden and total loss of chlorpyrifos, prevents farmers from using an effective and economical crop-protection tool."

Perdue said the court erred in its consideration of the science behind the registration.

"The U.S. Department of Agriculture and other groups have pointed out significant flaws in the draft chlorpyrifos assessments on which the court based its opinion, and USDA supports EPA's conclusion that the available scientific evidence does not indicate the need for a total ban on the use of chlorpyrifos," he said. "EPA should be allowed to continue its ongoing science-based and expert-led evaluation of chlorpyrifos, which is part of EPA's registration review program that covers all pesticides."

The EPA denied a petition filed by environmental groups on March 30, 2017, to ban the pesticide outright. The agency said in a statement at the time that farmers need chlorpyrifos and an agency that relies on "sound science" when making decisions.

That move was a surprising reversal from the stance of the EPA under the previous administration, which had indicated as recently as fall 2016 that it was prepared to issue a full ban on the pesticide.

The court decided the EPA had been ignoring its own science that allegedly showed chlorpyrifos is a danger to children.

Following the court's August 2018 decision, an EPA spokesman told DTN the decision was based on data that was not accessible to the agency.

A Columbia Center for Children's Environmental Health study has been widely used as support for a ban, despite divergent scientific views among EPA scientific review panels and the President Barack Obama administration's USDA questioning the study and its data.

A 2016 EPA scientific advisory panel indicated some members of that panel said they had difficulty assessing the study, because the raw data from the study was not made available.

On July 30, 2018, the California Department of Pesticide Regulation released a scientific assessment that concluded that chlorpyrifos should be listed as a toxic air contaminant in the state based on evidence of its neurological effects and exposure risks of concern.

Agricultural groups have expressed concern over a ban, arguing that doing away with chlorpyrifos could complicate the battle against insects, especially when growers are being encouraged to rotate chemistries to guard against insect resistance.

Corn historically has accounted for chlorpyrifos' largest agriculture market as far as total pounds used, because typically, there are more corn acres than soybean acres, according to EPA. There are more soybean acres than corn this year. In recent years, the use of chlorpyrifos has expanded in soybeans and has been on the decline in corn.

Todd Neeley can be reached at todd.neeley@dtn.com

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Todd Neeley