EPA Advances Chlorpyrifos Ban

EPA Forges Ahead on Pending Chlorpyrifos Ban as Court Decision Looms

Emily Unglesbee
By  Emily Unglesbee , DTN Staff Reporter
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EPA doubled down on its pending chlorpyrifos ban by denying 2021 ag industry petitions to halt the ban and starting the process of cancelling chlorpyrifos products. But in the background looms a 2022 lawsuit, asking a federal judge to stay the ban, set to go into effect on Feb. 28. (DTN file photo)

ROCKVILLE, Md. (DTN) -- With three days until its de facto chlorpyrifos ban goes into effect, EPA doubled down on its decision, denying objections to the rule from agricultural groups and starting the process to cancel chlorpyrifos products.

But in the background of these moves looms a lawsuit in the Eighth Circuit Court of Appeals, where a group of 21 agricultural trade groups have asked a federal judge to issue a stay of the EPA's ban and ultimately to dismiss it.

At issue is the EPA's August 2021 decision to issue a rule revoking all food residue tolerances for the insecticide chlorpyrifos in response to an order from the Ninth Circuit Court of Appeals. The rule essentially bans all use of chlorpyrifos insecticides on food or feed crops and it is set to take effect Feb. 28. (See more on the implications of that ban for farmers here: https://www.dtnpf.com/…)

In fall 2021, a group of 80 growers, retailers, co-ops, applicators, refiners, crop consultants and other agricultural stakeholders issued formal objections to the rule, asking EPA for public hearings and a stay of the rule. EPA is now responding to those objections -- with a hard no.

"Under today's action and after careful consideration, EPA is denying all objections, hearing requests and requests to stay the final rule filed during the period for submitting responses to the final rule," the agency wrote in a press release.

Representatives of the American Soybean Association, American Farm Bureau, American Sugarbeet Growers Association and the Cherry Marketing Institute said EPA's decision was belated, but not unexpected.

"EPA's decision comes as no surprise," the groups said in an emailed statement to DTN. "The agency indicated in its court filings it had every intention of rejecting our objections, hearing requests, and stay requests. It's unfortunate EPA sat on these objections for months and waited until the 11th hour to respond in an attempt to deny agricultural groups any recourse and seal the significant, irreparable harms growers and co-ops will experience under the rule."

The agency has also sent letters to the registrants of all chlorpyrifos products labeled for use on crops, asking them to voluntarily submit registrant amendments to remove food uses from their labels or to voluntarily cancel the products.

"For registrations not voluntarily canceled, EPA intends to issue a Notice of Intent to Cancel under the Federal Insecticide, Fungicide and Rodenticide Act to cancel registered food uses of chlorpyrifos associated with the revoked tolerances," the press release noted.

Use of chlorpyrifos, an organophosphate insecticide targeting biting and sucking pests, has been in decline for the past decade. But it was still in use in grain crops such as soybeans and corn, and in horticultural crops, such as cherry and citrus orchards.

Now all eyes will turn to the Eighth Circuit Court of Appeals, where a panel of judges is weighing the smaller coalition of 21 ag groups' last-minute lawsuit, filed Feb. 11, to stay the pending chlorpyrifos ban and dismiss it.

EPA has upended part of that lawsuit, where the plaintiffs decried the agency's silence on their formal objections, filed in 2021. The agency's unequivocal denial of those objections and refusal to grant the groups a public hearing could indicate EPA is confident the appellate judges will dismiss the lawsuit and let their rule -- which was the result of another appellate court's ruling -- stand.

No matter how the judge rules, however, the legal jockeying over chlorpyrifos seems far from over. As the agency noted in its court filings, citizens and organizations will soon be permitted to file "petitions for judicial review" of its decision to deny the ag groups' 2021 objections.

"Parties seeking judicial review of EPA's final order may file petitions for review two weeks after it is published in the Federal Register," EPA lawyers wrote in court filings.

"We will review EPA's rejection decision but fully expect to find more flawed reasoning and legal gymnastics to defend the agency's decision not to follow the law and ignore safety findings of EPA's career scientists," the ag groups' emailed statement added. "We will also continue to pursue our legal challenge and stay request to obtain relief from this harmful, unfounded rule."

See more on the Feb. 11 lawsuit from the 21 ag groups here: https://www.dtnpf.com/….

See more on their formal objections to EPA's rule, submitted in the fall of 2021, here: https://www.dtnpf.com/….

Emily Unglesbee can be reached at Emily.unglesbee@dtn.com

Follow her on Twitter @Emily_Unglesbee

Emily Unglesbee