Court Tosses EPA Chlorpyrifos Action

LINCOLN, Neb. (DTN) -- A federal appeals court threw out EPA's actions banning the insecticide chlorpyrifos, ruling on Thursday the agency's actions were arbitrary and capricious.

The ruling could clear the way for EPA to restore chlorpyrifos for the 2024 growing season. However, the ruling by the Eighth Circuit Court of Appeals is in direct conflict with a ruling two years ago by the Ninth Circuit.

EPA finalized a rule on Feb. 28, 2022, revoking the food tolerances for chlorpyrifos, effectively banning legal use of the insecticide among U.S. farmers. That rule was issued by the Biden EPA in response to an order from the U.S. Court of Appeals for the Ninth Circuit.

In its ruling on Thursday, the U.S. Court of Appeals for the Eighth Circuit said the EPA inappropriately rushed to meet a court deadline.

"The agency might have needed to move more quickly than usual to confirm the safety findings and start the process of canceling and adjusting registrations within the Ninth Circuit's deadline," the Eighth Circuit said. "But those are matters of policy and practicality, not statutory authority. The point is that the EPA should not have reflexively rejected an approach it had the power to adopt, even if it would have required more work."

Because the EPA was pressed to meet the Ninth Circuit's deadline, the Eighth Circuit said the agency "had only one real option: revoke all tolerances and ban chlorpyrifos. Its theory predetermined the outcome: 'exposures from (the 11 proposed) uses alone could not reasonably be considered as 'anticipated' since they did not yet (nor did EPA have reason to believe that they would) reflect the exposures people would be exposed to in the real world."

The court's ruling was met with celebration and relief from several agriculture interest groups.

The American Farm Bureau Federation was one of several agriculture organizations that sued EPA in the Eighth Circuit, alleging the EPA "ignored scientific evidence" that proved chlorpyrifos was safe.

"AFBF appreciates the Eighth Circuit Court of Appeals for recognizing that the Environmental Protection Agency failed to follow the law when it revoked the use of chlorpyrifos," AFBF President Zippy Duvall said in a statement.

"Farmers and ranchers are committed to growing safe and nutritious food, and they use science to guide decisions on how to manage pests and insects. Today's decision sends a message to EPA that it, too, must use sound science when drafting rules."

Daryl Cates, a soybean farmer from Illinois and president of the American Soybean Association, said in a statement the ruling was important because it holds EPA accountable for considering science when acting.

"Federal agencies cannot be permitted to ignore their own science at the expense of America's farmers," Cates said.

"This ruling will restore safe, effective uses of a tool needed by many growers to protect crops from damaging pests and help preserve an affordable food supply."

Nate Hultgren, president of the American Sugarbeet Growers Association, said the loss of chlorpyrifos forced many farmers to seek out more expensive options for fighting pests. Other farmers lost the only effective tool they had to protect their crops from certain pests.

"They had to use multiple pesticides applied multiple times with inadequate effectiveness," Hultgren said in a statement.

"This court's ruling supports science-based decisions. It allows our industry to safely use this product to protect our fragile plants and keep our farmers economically viable."

The EPA issued an interim registration for the insecticide in December 2020 before the Ninth Circuit handed down its order in April 2021. That order led EPA to issue its food tolerance revocation.

In the December 2020 action by EPA, it found 11 high-benefit, low-risk crop uses for chlorpyrifos. That finding was the subject of the lawsuit in the Eighth Circuit.

The Eighth Circuit said the agency could have implemented a partial ban like it has with other chemicals.

"It could have canceled some registrations and retained others that satisfied the statutory safety margin," the court said.

"The agency might have needed to move more quickly than usual to confirm the safety findings and start the process of canceling and adjusting registrations within the Ninth Circuit's deadline. But those are matters of policy and practicality, not statutory authority. The point is that the EPA should not have reflexively rejected an approach it had the power to adopt, even if it would have required more work."

Read more on DTN: "Ag Makes Case for Chlorpyrifos in 8th," https://www.dtnpf.com/…

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

Follow him on X, formerly known as Twitter, @DTNeeley

(c) Copyright 2023 DTN, LLC. All rights reserved.