Southern Crop

Southern Crop

Court Hands EPA Win in Fight Over Dow Pesticide

The EPA’s decision not to ban a widely used insecticide gained the backing of a federal appeals court, which said the agency followed court orders when it denied a request from environmental groups to restrict chlorpyrifos.
The U.S. Court of Appeals for the Ninth Circuit’s July 18 opinion is a victory for the Trump administration, whose decision not to revoke agricultural uses of chlorpyrifos marked a detour from the path the Obama administration took (Pesticide Action Network N. Am. v. EPA, 9th Cir., No. 14-72794, 7/18/17).
“This victory affords EPA the necessary time to conduct a proper evaluation under the law of the science and the studies on chlorpyrifos and provide clarity about the pesticide’s safety to the American people,” EPA spokeswoman Amy Graham said in a statement.
The Natural Resources Defense Council and Pesticide Action Network North America demanded in a 2007 petition that the EPA prohibit spraying of chlorpyrifos on crops because the chemical, manufactured by Dow AgroSciences, has been linked to neurodevelopmental delays in population studies. Chlorpyrifos is used to control pests on corn, soybeans, broccoli, and other crops, as well as on golf courses and turf, according to the Environmental Protection Agency’s website.
The groups sued the EPA in 2014 to force the agency’s hand on the issue. The EPA repeatedly sought to delay a decision on that petition, but was ultimately given a March 31 deadline by the court.
The EPA in 2015 proposed to revoke tolerances of the pesticide on food crops, which would have ended all agricultural uses of the pesticide, but didn’t make a final decision before the end of the Obama administration. EPA Administrator Scott Pruitt denied the environmental advocates’ request on March 29.
The NRDC and PANNA swiftly challenged that decision April 5, arguing that the denial was inadequate because it contained no new safety findings and made no final determination on whether the legal tolerances for chlorpyrifos on food crops must be revoked. At the time, the EPA said it would make a final decision on the re-registration of chlorpyrifos by Oct. 1, 2022.
Environmentalists Fight Decision
The three-judge panel disagreed with those arguments. The EPA complied with the court’s orders when it issued a “final response” to the petition, they wrote.
“Although EPA dragged its heels for nearly a decade, it has now done what we ordered it to do,” judges Diarmuid O’Scannlain, Wallace Tashima, and Margaret McKeown wrote in the opinion.
The environmentalists said the EPA failed to act on the “substance” of the petition. The question before the court, however, was the timing of the decision, not the substance of the agency’s regulation, the judges said.
Patti Goldman, an attorney for Earthjustice who represented NRDC and PANNA, said the organizations will shift their attention to fighting the merits of Pruitt’s decision.
“We’re disappointed in the ruling because what they did is so blatantly illegal,” Goldman told Bloomberg BNA.
Goldman is representing the groups on the issue in a separate case being heard before the Ninth Circuit, as well as in administrative objections sent to the EPA. Five states and the District of Columbia have intervened on behalf of the environmentalists in the lawsuit challenging the decision.
Dow Agrosciences said the Ninth Circuit’s conclusion “supports the long-standing regulatory framework and process.”
“We are pleased that growers will continue to have access to this vital crop protection solution,” company spokesman David Sousa said in a statement.
To contact the reporter on this story: Tiffany Stecker in Washington at tstecker@bna.com
To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

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