EPA Taken To Court For Ignoring Its Own Science In Deciding To Not Ban Pesticide

When Scott Pruitt recently took over as head of the Environmental Protection Agency, one of his first decisions was to deny a petition seeking a ban on a controversial pesticide — only months after scientists of the agency said it poses a significant health risk. Now the EPA is being taken to court for its decision to ignore its own recommendation.

Last November, the Environmental Protection Agency seemed poised to pull the plug on chlorpyrifos, a pesticide that has been linked to neurotoxic effects, particularly in children.

Chlorpyrifos was once the most widely used household pesticide in the U.S., being a key ingredient in some 800 products. Then in June 2000 the EPA phased out non-agricultural uses of the chemical.

However, the pesticide continues to be used, with the EPA’s okay, on a wide variety of crops at thousands of farms nationwide.

After a long delay and legal battle — including a 2015 court order directing the EPA to stop dilly-dallying and finally respond to an 8-year-old petition requesting this ban — scientists at the agency concluded [PDF] that chlorpyrifos posed a risk to humans through residue on crops and tainted drinking water. Their findings found examples of exposure to levels of the pesticide up to 14,000 times the limit the agency considers safe.

“The revised analysis indicates that expected residues of chlorpyrifos on most individual food crops exceed the ‘reasonable certainty of no harm’ safety standard” under federal law, wrote the EPA in 2016. “In addition, the majority of estimated drinking water exposures from currently registered uses, including water exposures from non-food uses, continue to exceed safe levels even taking into account more refined drinking water exposures.”

The EPA advised a federal court at the time that it intended to revoke all tolerances of chlorpyrifos, and the court granted the agency a deadline of March 31, 2017 to finalize that decision.

Then, Scott Pruitt — who had repeatedly sued the EPA in his previous role as attorney general for Oklahoma — was named head of the agency, and on March 29, rather than move forward with the proposed ban on chlorpyrifos, the EPA issued a blanket denial [PDF] of the original 2007 petition seeking the ban.

Instead of heeding its own conclusions, the EPA now says it will continue to review the science and make a decision in 2022, at which point the agency is required by law to review the continued use of chlorpyrifos. The denial of the petition argued that the agency had no choice since a federal appeals court had refused to grant yet another extension on the EPA’s review — a process that has now taken a full decade with no end in the near future.

Yesterday, the Natural Resources Defense Council and Pesticide Action Network North America — the two groups behind that 2007 petition and the lawsuit that resulted in the 2015 court order — went back to court, claiming that “EPA’s response to the petition is no response at all and certainly not what this Court ordered EPA to do by March 31, 2017.”

The motion points out that the EPA cites no new evidence in its response, and argues that there is no reasonable way the EPA could ultimately decide that chlorpyrifos is safe “given the extensive scientific record documenting hazards” from the pesticide.

The petitioners argue that the EPA’s dismissal is “remarkable in its utter silence as to EPA’s previous findings. Nowhere does EPA suggest that it has reconsidered its finding that chlorpyrifos is unsafe. Nor does EPA address how it can legally maintain chlorpyrifos tolerances in the face of its findings that chlorpyrifos exposures are unsafe.”

They note that the EPA has not withdrawn that proposed rule; just decided to ignore and wait until the agency is legally obliged to do something.

The petitioners are asking the court to give EPA 30 days to finalize the rule and revoke the use of chlorpyrifos.

“EPA is refusing to take this chemical off the market—but it is not rescinding its own scientists’ finding that this pesticide is toxic to children,” says Miriam Rotkin-Ellman, senior scientist at NRDC. “Parents shouldn’t have to worry that a dangerous chemical might be lurking in the fruits and veggies they feed their kids. The health of our children must come before chemical corporations.”