Yesterday the Ninth U.S. Circuit Court of Appeals ordered the Environmental Protection Agency to ban chlorpyrifos, a common insecticide linked to neurological damage in both people and wildlife, following a confounding 2017 decision by former EPA head Scott Pruitt to revoke a proposed ban, drawing immediate and widespread criticism.
For decades, the EPA has known of the harms caused by the organophosphate pesticide, which targets the nervous system and disrupts signals in the brain. In 1998 the agency banned indoor use of chlorpyrifos over fears of the effects of cumulative exposure to infants and children. Indeed, studies and reviews by EPA scientists linked the pesticide to delayed physical and mental development in children, including lower IQ, attention problems, and delayed motor development, as well as to adverse impacts on virtually all species listed under the Endangered Species Act. Yet in 2015 more than five million pounds of the pesticide were applied to food crops like grapes, soybeans, wheat, and corn, according to the USGS agricultural pesticide database.
The court has now given the EPA 60 days to ban chlorpyrifos. The agency says it is reviewing the court’s decision and continues to insist there is not enough data to declare the pesticide a threat to human health. The court also reprimanded the EPA for failing to act earlier and denying the dangers posed by this chemical.
“There was no justification for the EPA’s decision in its 2017 order to maintain a tolerance for chlorpyrifos in the face of scientific evidence that its residue on food causes neurodevelopmental damage to children,” judges Jacqueline Nguyen and Jed Rakoff write in the 2-to-1 court opinion. “In such circumstances, federal law commands that the EPA ban such a pesticide from use on food products.” Judge Ferdinand Fernandez dissented on jurisdictional grounds.
The agency has delayed banning the pesticide for more than a decade, starting in 2007 when the Natural Resources Defense Council and the Pesticide Action Network petitioned the EPA to ban all outdoor uses of chlorpyrifos. After several more back-and-forth volleys, with no action taken by EPA, in 2014 the Ninth Circuit Court of Appeals stepped in and ordered the agency to evaluate the pesticide and make a decision about its safety by the following year. The court declared the delayed response “egregious” given the EPA’s own evidence hinting at the pesticides’ dangers.
In 2015, the agency finally responded and proposed a chlorpyrifos ban, but failed to finalize it before President Trump took office. Scott Pruitt’s EPA revoked the proposal in March 2017 after extensive lobbying by Dow Chemical (now DowDuPont), the leading chlorpyrifos manufacturer. Environmental and medical groups immediately objected to the decision, but “the EPA’s utter failure to respond,” the judges write in the decision, left the issue in the lurch and the insecticides in circulation.
Twelve environmental and farmworkers' rights groups—including NRDC, PANNA, GreenLatinos, National Hispanic Medical Association, and United Farm Workers—represented by Earthjustice sued the EPA over the revocation. The Ninth Circuit Court of Appeals heard oral arguments in July, and passed down its decision yesterday.
“[This decision] was a long time coming and finally children, farmworkers, and consumers in America are going to be protected,” says Marisa Ordonia, an attorney for Earthjustice. “The court sent a message to the EPA that they have to follow the law just like anyone else.”
Mark Magaña, CEO of Green Latinos, says the ruling is a win for the health of the Latin American community: “As Latinos make up a high percentage of farm workers, it’s specifically a victory for our community and those who are most vulnerable and on the front lines of toxins and pesticides.”
Given the detrimental effects the pesticide has on insects and humans, it comes as no surprise that it’s highly toxic for birds as well. As Audubon has previously reported, birds that have simply walked on contaminated vegetation or eaten insects or seeds laced with the pesticide can grow sick or die. The pesticide causes sparrows to lose their sense of direction and makes it difficult for Japanese Quail to breathe.
The EPA could still appeal the decision to the Supreme Court. “EPA is reviewing the decision,” agency spokesperson Michael Abboud wrote in an email to Audubon.
Abboud questioned the science underlying the health assessments—specifically a study by the Columbia Center for Children’s Environmental Health that followed hundreds of mothers and newborn children and monitored their chemical exposure and neurodevelopment for many years. “The Columbia Center’s data underlying the Court’s assumptions remains inaccessible and has hindered the Agency’s ongoing process to fully evaluate the pesticide using the best available, transparent science,” he wrote.
Columbia scientists say they cannot submit the raw data to the agency without exposing the children’s and mothers’ private information. The argument follows an agency trend to question scientific research and restrict the kinds of data it uses in decisionmaking. The EPA is currently pursuing a rule that would require scientists to submit their raw data for agency consideration, even at the risk of breaching patient privacy—an idea that the scientific and medical community has rejected as a threat to public health.
“We are going to stay on top of them to make sure this ruling is followed through on based on undisputed findings that this pesticide is unsafe for public health,” Magaña says.
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