The Ninth Circuit blasted the U.S. Environmental Protection Agency on Thursday for failing to follow federal guidelines and ordered the agency to ban chlorpyrifos, a pesticide known have detrimental health impacts to children.
A three-judge panel vacated the EPA’s 2017 decision to delay ruling on whether to ban the pesticide, and ordered the agency to move forward with a ban within 60 days.
“There remains no justification for the EPA’s continued failure to respond to the pressing health concerns presented by chlorpyrifos,” U.S. District Judge Jed Rakoff, sitting by designation from the Southern District of New York, wrote in the 2-1 decision.
Rakoff noted the EPA did not attempt to argue the case on the merits, but instead resorted to technical arguments on whether the court has jurisdiction over the process in the agency’s consideration of the pesticide.
“The EPA presents no arguments in defense of its decision,” Rakoff wrote. “Accordingly, the EPA has forfeited any merits-based decision.”
U.S. Circuit Judge Ferdinand Fernandez dissented from the majority on the question of jurisdiction, but notably found the discussion on the merits put forward by the majority “persuasive.”
Environmental organizations celebrated the ruling. Many have been working to get the EPA to ban the chemical for over a decade.
“The court ended EPA’s shameful actions that have exposed children and farmworkers to this poison for decades,” said Earthjustice attorney Marisa Ordonia. “Finally our fields, fruits, and vegetables will be chlorpyrifos free.”
Chlorpyrifos is a nerve agent pesticide, first used by the Nazis during World War II and later repurposed for agricultural use by Dow Chemical in 1965. It kills insects by suppressing the enzymes crucial for cell reproduction.
Recently, scientific studies have indicated exposure can lead to human health problems including neurological disorders and autoimmune diseases. Exposure can be particularly problematic for children, leading to developmental problems. The evidence of mental development problems in children who were exposed to the chemical in utero was so strong that the United States banned household use of the chemical.
However, regulations still allowed the chemical to be used commercially, and it’s still one of the most widely used insecticides in the nation.
The EPA’s own scientific studies bolstered other studies linking the chemical and developmental problems in children as far as 2007, when a petition to ban the chemical was first brought.
Rakoff’s opinion recounted the agency’s tortuous and protracted approach to the ban for the past 11 years.
“Despite these earlier expressions of concern, the EPA failed to take any decisive action in response to the 2007 petition, notwithstanding that the EPA’s own internal studies continued to document serious safety risks associated with chlorpyrifos use, particularly for children,” he wrote.
The EPA routinely said it needed more scientific evidence before taking action.
In March 2017, in one of his first acts as EPA administrator, now-former EPA chief Scott Pruitt denied a petition to ban the chemical and said more study was required.
The Ninth Circuit panel took a dim view of the EPA’s rationale for denying the ban.
“The EPA cannot refuse to act because of the possibility of contradiction in the future by evidence unavailable at the time of action – a possibility that will always be present,” Rakoff wrote.
But the EPA stood behind its process, saying Thursday that the scientific studies underlying the court’s decision are not available for the agency to review and confirm.
“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,” said EPA spokesman Michael Abboud. “EPA is reviewing the decision.”
While the Trump administration has been lambasted by environmental organizations over its close relationship with Dow Chemical executives, Abboud points out the agency also had concerns about the scientific record under former President Barack Obama.
“Some panel members thought the quality of the … data is hard to assess when raw analytical data have not been made available, and the study has not been reproduced,” a scientific advisory panel concluded in 2016.
But environmentalists maintain those arguments are the rationale of an industry hungry for profit at the direct expense of public health.
“For years corporations like Dow were able to hijack our government to put profit before people,” said Sindy Benavides, chief executive officer at the League of United Latin American Citizens, a plaintiff in the case. “But today the court sided with reason. Children and farmworkers have the right to live and work without risk of poisonings.”