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Eighth Circuit Vacates EPA’s Ban on Chemical Pesticide Chlorpyrifos

on Thursday, 9 November 2023 in Environmental Pulse: Vanessa A. Silke, Editor

In RRVSG Assoc. v. Regan, the court temporarily reinstated the right of agricultural producers to use Chlorpyrifos, a key ingredient in chemical pesticides.

The U.S. Court of Appeals for the Eighth Circuit recently decided RRVSG  Assoc.  v. Regan, File No. 22- 422 (8th Cir. Nov. 2, 2023), a case challenging the U.S. Environmental Protection Agency’s (“EPA”) ban on chlorpyrifos.  The court held that the EPA had acted arbitrarily and capriciously because it had failed to consider all available options in evaluating whether to ban or modify its restrictions on Chlorpyrifos use.

Chlorpyrifos is a chemical pesticide that agricultural producers previously applied to many crops.  It wards off beetles, caterpillars, and other insects that damage crops.  But chlorpyrifos can harm humans if they ingest large quantities. 

To that end, the EPA promulgated extensive “tolerances” on how much chlorpyrifos may remain on each “pesticide-food combination.”  21 U.S.C. § 346a(a)(1).  This led to a complex regulatory structure in which turnips, for instance, had different chlorpyrifos tolerances than turnip tops.  In 2007, an environmental group petitioned the EPA to revoke all tolerances, claiming that chlorpyrifos was not safe in any amount in any pesticide-food combination. 

The EPA declined to revoke any tolerances, and the environmental groups appealed.  After over a decade of courtroom battles, the U.S. Court of Appeals for the Ninth Circuit issued a writ of mandamus ordering the EPA to either “revoke[] all chlorpyrifos tolerances or modify them if [the EPA] could certify that the tolerances so modified were safe.”  League of Latin Am. Citizens v. Regan, 996 F.3d 673, 703 (9th Cir. 2021).  The EPA acquiesced to this order and revoked all chlorpyrifos tolerances, which effectively banned the use of chlorpyrifos.

In the instant case, nearly two dozen agricultural groups petitioned the Eighth Circuit to overrule the EPA’s decision.  A court may overrule an agency decision if the decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  5 U.S.C. § 706(2)(A).  The court held the EPA’s revocation of the chlorpyrifos thresholds was arbitrary and capricious, and vacated the EPA’s decision.

Specifically, the court held that the EPA had failed its obligation to evaluate the tolerances in light of the aggregate exposure risk posed to the consumer base.  Federal law requires the EPA to consider both current exposure and anticipated exposure.  21 U.S.C. § 346a(b)(2)(ii).  Thus, the EPA could have retained at least some tolerances.  Further, the EPA conceded that it had known of 11 “high-benefit agricultural uses” for Chlorpyrifos.  Id., at 7.  That the EPA gave up on this opportunity to retain at least some of these beneficial tolerances, the court said, showed that its action was arbitrary and capricious. 

The court heavily relied on the EPA’s failure to consider the anticipated change in aggregate consumer exposure in reaching its decision.  “The difficulty of picking winners and losers was[] no reason for [the EPA] to ignore its own safety data,” and a “short deadline is no excuse for zeroing in on a single solution to the exclusion of others.”  Id., at 13-14 (internal quotations omitted).  Due to the EPA’s failure of this affirmative duty, the court vacated the EPA’s order to revoke all thresholds of Chlorpyrifos. 

What this means for farmers is that they may continue using Chlorpyrifos for now.  The court remanded the matter to the EPA to reevaluate its options.  The likely end-result is that the EPA will publish a new list of threshold tolerances.  We will continue to monitor developments on this matter.

Attorneys at Baird Holm LLP specialize in various subject matter areas including administrative law, agricultural and land use law, and environmental law. Please do not hesitate to contact us if you have questions about this case or any related matter.

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