EPA to Revisit Chlorpyrifos Petition

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) -- The EPA has until July 18 to address objections to its 2007 decision to reject a petition asking the agency to ban chlorpyrifos, as a result of an order issued on Friday by the U.S. Court of Appeals for the Ninth Circuit in San Francisco.

The order came after a hearing before all of the judges of the Ninth Circuit on March 26, 2019. That hearing was requested by the EPA, after a smaller panel by the court last year ordered the cancellation of all chlorpyrifos registrations.

According to the order handed down on Friday, the agency indicated during oral arguments it could consider and have a decision within 90 days on objections filed by the League of United Latin American Citizens, or LULAC.

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 "sound science" when making decisions.

The LULAC objected to the decision and the agency did not respond to those objections.

The agency's rejection of the 2007 petition was a surprising reversal from the stance of the EPA under the Obama administration, which had indicated as recently as fall 2016 that it was prepared to issue a full ban on the pesticide. The Ninth Circuit last year decided the EPA had been ignoring its own science that showed chlorpyrifos is allegedly a danger to children.

In August 2018, the EPA asked for an "en banc" hearing before all non-recused judges in the Ninth Circuit. En banc hearings are reserved for cases that are particularly complex.

On Aug. 9, 2018, a three-judge panel 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." Chlorpyrifos' registration was set to end on Oct. 9, 2018.

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

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

The petition argued the court's revocation of the registration was 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.

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 the ban, despite divergent scientific views among EPA scientific review panels, and former President Barack Obama's 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.

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

Follow him on Twitter @toddneeleyDTN

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