Federal Court to Rehear EPA’s Decision to Not Ban Chlorpyrifos
By: Shyam Rajan
An environmental non-profit organization is planning to take the Environmental Protection Agency (EPA) back to court after the agency refused to ban the pesticide chlorpyrifos.
Earlier this year, the U.S. Court of Appeals for the Ninth Circuit allowed the EPA 90 days to decide the chemical’s future after the League of United Latin American Citizens (LULAC) brought a suit seeking the pesticide’s ban. Earthjustice, which is representing LULAC, is looking to challenge that decision.
“The EPA has never said that it has found this pesticide safe. It wants to keep studying the science and wait to take any action until some undetermined future date when it has done that study and that is not allowed under the law because when it makes a finding, it can leave the pesticide in our food only if they find it safe,” said Patti Goldman, lead attorney at Earthjustice.
The Ninth Circuit agreed to rehear the case. Earthjustice’s opening brief is due at the end of October.
Allison Crittenden, Director of Congressional Relations at the American Farm Bureau Federation, said that despite the criticism of the pesticide, it serves an important purpose. “We are not supportive of the effort to ban it,” said Crittenden. The Federation says they do not take a position on the pesticide’s specific toxicity.
“It’s just responsible use, following the instructions on the label, making sure you are using the proper protection when you are using pesticides,” said Crittenden. “A lot of it is common sense but there are guidelines in place and standards in place that use of pesticides must meet in order to use them.”
Although consensus is lacking as to its neurotoxic properties, chlorpyrifos is a near-invisible pesticide sprayed on most fruits and vegetables families eat daily. It has been marketed since the mid-1960s for commercial use in the United States.
“You can measure the levels in the blood and after a certain point people are at risk of acute poisoning. That happens often, every year, that happens to people often just from pesticide drifting from where it’s applied and getting into where other people are, whether its workers in the field or kids at school or people in their yard,” Goldman said.
From a family of about two dozen pesticides known as organophosphates, chlorpyrifos is one of many still active on the American market. The Centers for Disease Control and Prevention liken the effects of exposure to organophosphates by inhalation to contact with nerve agents used in chemical warfare.
Diane Perez, Washington State Director for the LULAC, said the EPA’s decision may have been a result of shifting politics, as Republican leaders took control from Democratic officials in Washington, D.C. a few years ago.
“It might have just been pressure from the agriculture industry, or just the fact that there was a change in administration, so everything was going to be paused and reassessed and reevaluated for other purposes. I want to believe that everybody in all levels of government really have the people’s health as a priority,” Perez said.
According to EPA estimates, about 5-8 million pounds of chlorpyrifos are used nationwide per year.
“Over half of all the apples and broccoli in the US are sprayed with chlorpyrifos. We have the right to ask what pesticides are being used on these crops,” Perez said.
However, Crittenden said there is good reason for its widespread use.
“There are some pests where chlorpyrifos is the only option. If we start to ban all of these different pesticides and leave farmers with limited options, we risk [pests] developing resistance to these chemicals and then they no longer become as effective,” Crittenden said.
According to Earthjustice and the Pesticide Action Network, chlorpyrifos suppresses an enzyme regulating nerve impulses. Exposure can manifest itself more prominently in children, especially in doses far below those which cause acute poisoning. An article published by the National Center for Biotechnology Information indicates that exposure can begin in utero, causing brain damage, changes in physical and mental development, and attention deficit disorders.
Perez believes more could be done while waiting for the court’s decision.
“Who knows how long it will take at the federal level?” asked Perez. “So at least what we could do is take a state strategy approach as well. I don’t know how often folks are aware, so education about these specifics is going to be very important.”
Goldman said alternatives have been discussed at least since the early nineties, but the conversation became more complex after realizing alternatives must be considered on a pest-by-pest, or even crop-by-crop, basis. Crittenden said limiting which pesticides farmers can use will increase the cost of purchasing food.
“Farmers need to have all the crop protection tools available to them. We are being asked to produce more food with fewer resources. Without allowing farmers to have access to a broad array of technologies we would not be able to effectively do that,” Crittenden said.
Regardless, Goldman said she has hope that she will be successful in her challenge of the pesticide.
“It’s pretty clear this class of pesticides is archaic, outdated, and is on its way out. Hopefully, then, we will be looking at kind of a different paradigm of how decisions are made, particularly those that are affecting our children and [causing] society so much harm unnecessarily.”
Perez agrees.
“The agriculture industry wants to have all [the] tools available. I think what we need to start doing is looking at [the] lower risk tools we have out there and putting the people’s health as our priority over the almighty dollar,” Perez said.
California recently banned the use of chlorpyrifos in the state, following similar actions by New York and Hawaii.
*The EPA declined to provide comments.
(Editor's Note: This article was originally published in the October 2019 [Volume 50, Issue 1] version of The Advocate.)