Agricultural groups and the Environmental Protection Agency have persuaded the U.S. Ninth Circuit Court of Appeals to reconsider its decision to ban chlorpyrifos. Last August, a three-judge panel ruled 2-1 that EPA should ban all uses of the product, which is sold under the trade name Lorsban. A majority of eligible judges in the circuit voted to reconsider the case with an expanded panel of judges.
The court will schedule proceedings that will likely include further briefings and argument. No date for the new arguments has been scheduled.
On Aug. 9, 2018, the appeals court ordered EPA to finalize its proposed ban on chlorpyrifos within 60 days. In September 2018, EPA requested that the full court rehear the case. The lawsuit was brought by the Natural Resources Defense Council as part of a coalition of labor and health organizations represented by Earthjustice.
A spokeswoman for EPA said in an statement emailed to Feedstuffs, “EPA is pleased that the U.S. Court of Appeals for the Ninth Circuit has agreed to rehear its earlier decision in this matter, and we will work closely with the Department of Justice in preparation for the rehearing.”
The EPA spokeswoman added, “The federal chlorpyrifos tolerances and registrations will remain in place, and use according to label instructions can continue, as permitted by state law, while the rehearing is conducted.”
Agriculture Secretary Sonny Perdue said in a statement after EPA requested the full hearing in September 2018 that the U.S. Department of Agriculture disagreed with the ruling ordering EPA to revoke tolerances and cancel registrations for chlorpyrifos. “The decision appears to be based on a misunderstanding of both the available scientific information and EPA’s pesticide regulatory system,” Perdue said.
USDA and other groups have pointed out significant flaws in the draft chlorpyrifos assessments on which the court based its opinion, and Perdue said USDA supports EPA’s conclusion that the available scientific evidence does not indicate the need for a total ban on the use of chlorpyrifos. “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,” he added.
“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. This ruling, which would mean the sudden and total loss of chlorpyrifos, prevents farmers from using an effective and economical crop protection tool,” Perdue added.
Chlorpyrifos is used on well over 50 crops grown throughout the U.S. due to its efficacy and broad-spectrum activity across multiple pests. For some crops and target pests, chlorpyrifos is the only line of defense, with no viable alternatives.
“Chlorpyrifos helps farmers and consumers by improving production efficiency and contributing to public health and safety,” Perdue stated. “The arbitrary, immediate and total loss of this crop protection tool endangers agricultural industries and is expected to have wide economic impacts. Given the court’s incorrect assessment of the scientific evidence, we thank the Department of Justice for continuing to fight on behalf of American farmers and consumers in support of science-based regulatory oversight of crucial crop protection tools.”
Following the announcement that the full court would rehear the case, Patti Goldman, the Earthjustice managing attorney handling the case, said, “EPA’s own scientists have said for more than two years that chlorpyrifos is harmful, particularly to children. Any delay to ban this toxic chemical is a tragedy. Chlorpyrifos should be banned based on the agency’s own scientific conclusion and the law.”