On February 9, 2022, a coalition of farm groups filed a lawsuit in the Eighth Circuit Court of Appeals challenging the Environmental Protection Agency’s (“EPA”) decision to ban all uses of the pesticide chlorpyrifos on food crops. Specifically, the farm groups are asking the court to continue allowing food uses of chlorpyrifos consistent with a safety finding that EPA made in 2020. The chlorpyrifos ban is set to go into effect on February 28, 2022.
Background
Chlorpyrifos is an organophosphate pesticide that is primarily used to control various pests, including mosquitoes and roundworms. It was originally registered for use in the United States in 1965, and has since been used in agriculture for food and feed crops. EPA is currently in the process of reviewing chlorpyrifos’ registration under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) which requires all registered pesticides to be reviewed every fifteen years to determine if they still meet FIFRA registration standards.
As part of that registration review, EPA issued a proposed interim decision (“PID”) for chlorpyrifos in December 2020. Such interim decisions allow EPA to implement new restrictions on registered pesticides prior to fully completing a fifteen-year registration review. The chlorpyrifos PID proposed a limitation of chlorpyrifos use to EPA’s Designated Safe Uses which would have allowed use of chlorpyrifos on eleven food crops in specifically designated regions. In early April 2021, EPA approached Gharda Chemicals International, Inc. (“Gharda”), the current chlorpyrifos registrant, about an agreement to voluntarily cancel those uses of the pesticide which did not fall into EPA’s Designated Safe Uses category.
Ninth Circuit Decision & EPA Actions
Before Gharda could take steps to initiate a voluntary FIFRA cancellation, the Ninth Circuit Court of Appeals issued its decision in League of United Latin Am. Citizens v. Regan, No. 19-71979 (9th Cir. 2021). The plaintiffs in the case were farmworker groups who had filed the lawsuit in 2007 asking the court to order EPA to act on petitions submitted to EPA by the plaintiffs regarding the safety of chlorpyrifos. Specifically, the plaintiffs had petitioned EPA to review the safety of tolerance levels for residues of chlorpyrifos on food products. The plaintiffs argued that the current levels were unsafe, citing studies that showed that the current residue tolerances of chlorpyrifos caused a risk of neurological damage in children. The Ninth Circuit agreed with the plaintiffs, and ordered EPA to review the chlorpyrifos tolerances. If EPA determined that the tolerance levels were unsafe, it was to either revise the tolerances or revoke them entirely.
The plaintiffs in League of United Latin Am. Citizens based their argument on the intersection between FIFRA and the Federal Food, Drug, and Cosmetic Act (“FFDCA”). Any time EPA registers a pesticide under FIFRA, it must show that the pesticide will not cause an “unreasonable adverse effects on the environment.” 7 U.S.C. § 136a(c)(5)(C). The definition of “unreasonable adverse effects on the environment” incorporates the FFDCA requirement that all pesticides registered for use on food crops have an accompanying residue tolerance level that describes what amount of a pesticide may legally be in or on raw agricultural commodities or processed foods. According to the FFDCA, EPA “may establish or leave in effect a tolerance for a pesticide chemical residue in or on a food on if [EPA] determines that the tolerance is safe.” 21 U.S.C. § 346a(b)(2)(A)(i). The Act goes on to state that with respect to pesticide tolerances, the term “safe” means that EPA “has determined that there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.” 21 U.S.C. § 346a(b)(2)(A)(ii). The plaintiffs claimed that information included in the original 2007 petition, plus additional studies conducted by EPA since the petition had been submitted, indicated that exposure to chlorpyrifos at the current tolerance levels could cause neurodevelopmental damage in humans. Therefore, the plaintiffs argued that the chlorpyrifos tolerance levels no longer met the FFDCA definition of “safe” and that the tolerances could not legally remain in effect. The Ninth Circuit agreed with the plaintiffs, and ordered EPA to either modify or revoke the chlorpyrifos tolerances. For more information on this lawsuit, click here.
In August 2021, EPA announced that in accordance with the Ninth Circuit’s decision in League of United Latin Am. Citizens, it would be revoking all FFDCA tolerances for chlorpyrifos. Because FIFRA registration requirements incorporate FFDCA pesticide residue tolerance standards, chlorpyrifos cannot legally remain registered for uses on food crops without a residue tolerance. Accordingly, EPA also announced that it would be issuing an accompanying Notice of Intent to Cancel all food uses of chlorpyrifos. The chlorpyrifos tolerances are set to expire on February 28, 2022. Once they do, all food that contains traces of chlorpyrifos that was applied after that date may not legally be introduced to United States commerce, and EPA will proceed with its Notice of Intent to Cancel. To read more about EPA’s decision, click here. For more information about the FIFRA cancellation process, click here.
In response to EPA’s action, a series of farm groups filed petitions to stay the revocation of chlorpyrifos tolerances. Under the FFDCA, any party may file an objection to any EPA order establishing, modifying, or revoking a pesticide tolerance. 21 U.S.C. § 346a(g)(1). According to the farm groups, EPA failed to respond to the stay petitions which prompted them to file a lawsuit.
Farm Group Lawsuit
The farm group plaintiffs in Red River Valley Sugarbeet Growers Ass’n v. Regan, No. 22-1294 (8th Cir. 2022) are asking the court for two things. First, the farm groups would like the court to review EPA’s failure to act on the stay petition submitted by the groups. Second, the farm groups would like the court to review EPA’s final rule revoking the tolerances of chlorpyrifos. The farm groups argue that the court should ultimately prevent the final rule from going into effect because the petitions submitted by the groups satisfy all the necessary requirements for EPA to grant a stay. Specifically, the farm groups ask that the court prevent the final rule from going into effect for those applications of chlorpyrifos that would fall under EPA’s Designated Safe Uses. They also ask that the court stop the revocation rule from going into effect for all other crop uses until EPA issues an order directing farmers on how to treat their remaining stocks of chlorpyrifos.
According to the farm groups, EPA’s failure to act on the stay petitions submitted by the groups is unlawful and should be reviewed by the court. Additionally, the farm groups claim that the court should grant the stay because the petitions satisfied all the necessary requirements. Under the FFDCA, parties seeking to challenge a regulation must submit their petition to EPA within 60 days of the regulation being issued. 21 U.S.C. § 346a(g)(2)(A). The regulations implementing the FFDCA state that once a stay petition filed under the Act has been received, the petitioned agency is to respond “promptly” and should grant the petition if certain requirements are met. 21 C.F.R. § 10.35(e). In order for a stay petition to be granted, the petitioners must show: (1) that they will suffer an irrevocable injury if the petition is not granted; (2) that the petition has been filed in good faith; (3) that there is sound public policy supporting the stay; and (4) that the delay resulting from the stay is not outweighed by public health or public interest concerns. 21 C.F.R. § 10.35(e).
The farm groups claim that their petitions met the four necessary requirements to grant a stay. First, the farm groups showed that they would suffer “substantial and unrecoverable economic losses” if they are unable to apply chlorpyrifos to their crops this growing season. Second, they showed that their petition was brought in good faith because it raised “sound public policy challenges.” Finally, the farm groups showed that granting the stay would be in the public interest by allowing farmers who relied on chlorpyrifos to continue using a pesticide which was critical to their livelihoods. Additionally, the farm groups contend that no public health or other public interest outweigh the need for a stay. Because EPA did not grant the stay despite the requirements to do so being satisfied, the farm groups argue that the court should both review EPA’s failure to act and also grant the requested stay.
Going Forward
At the moment, the tolerances for chlorpyrifos are expected to expire on February 28, 2022. Once the tolerances expire, food products containing any amount of chlorpyrifos that was applied to crops after that date may not be legally introduced into the stream of commerce. If the Eighth Circuit grants the request of the farm groups, it is possible that the tolerance expiration date may be pushed back. However, it is currently unclear what the court will decide.
To read the farm groups’ complaint in Red River Valley Sugarbeet Growers Ass’n v. Regan, click here.
To read the Ninth Circuit’s decision in League of United Latin Am. Citizens, click here.
To read EPA’s final decision to revoke tolerances for chlorpyrifos, click here.
To read the relevant text of the FFDCA, click here.
To read the text of FIFRA, click here.
For more National Agricultural Law Center resources on pesticides, click here.