By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
By a 2-1 vote, a three-judge panel of the United States Court of Appeals for the Ninth Circuit ordered the Environmental Protection Agency (EPA) on Thursday to bar within 60 days chlorpyrifos, a pesticide linked to developmental disabilities in children, and nervous system damage to adults and animals.
Environmental and other public interest groups have sought a ban for more than a decade. The New York Times reports in Court Orders E.P.A. to Ban Chlorpyrifos, Pesticide Tied to Children’s Health Problems:
The product is used in more than 50 fruit, nut, cereal and vegetable crops including apples, almonds, oranges and broccoli, with more than 640,000 acres treated in California alone in 2016, the most recent year data is available.
Dow Chemical Co. created chlorpyrifos in the 1960s. Currently, it’s one of the most widely used agricultural pesticides in the United States. Each year, Dow AgroSciences sells about 5 million pounds domestically, according to CBS in Appeals court orders EPA to ban sales of widely-used farm pesticide chlorpyrifos.
It’s difficult to avoid exposure to this chemical if you’ve spent significant time in the United States. Over to CBS again:
As a result of its wide use as a pesticide over the past four decades, traces of chlorpyrifos are commonly found in sources of drinking water. A 2012 study at the University of California at Berkeley found that 87 percent of umbilical-cord blood samples tested from newborn babies contained detectable levels of the pesticide.
Better living through chemistry!
Who Is Rakoff and Why Is He Authoring a Ninth Circuit Opinion?
Judge Jed S. Rakoff wrote the opinion in Lulac v. Wheeler. The lawsuit was filed last year by environmentalists and farmworkers and joined by attorneys general from seven states, including California, Massachusetts, and New York, and the District of Columbia.
Now, regular readers may recall the name of Judge Rakoff. He’s a securities law expert, and Yves has noted he’s known for his failure to rubber-stamp SEC settlements he didn’t deem fair. (Rakoff has featured in several posts; when I searched the site, I found at least a dozen posts. I won’t cite them all here but interested readers can search for Rakoff and generate the same list.)
He also wrote a pointed article in the New York Review of Books in 2016, Why You Won’t Get Your Day in Court, discussing the lack of access for all but the richest Americans to courts (see this post by Yves on that article, Judge Jed Rakoff Throws Down Gauntlet to Judges on Lack of Due Process in America).
The sharp-eyed might wonder why Rakoff, who is a senior federal judge of the southern district of New York– which falls within the Second Circuit– was writing a Ninth Circuit appellate opinion. Answer, he was sitting “by designation.” A statute, specifically 28 U.S. Code § 292 (d), provides for the Chief Justice [of the United States] to designate and assign temporarily a district judge of one circuit for service in another circuit, either in a district court or court of appeals, whereas 28 U.S. Code § 294 (d) grants the Chief Justice similar authority for retired judges; since I believe Rakoff is a senior judge, I’m not sure which provision applies to him.I may appear to be disappearing too far into the weeds here, but before beginning this post, I had never heard of this practice, and I thought that if it’s news to me, it might be likewise to at least some readers.
If you read press coverage, this decision is being touted as a setback to the Trump environmental agenda.
There’s no denying that’s the case– at least for the moment.
Yet part of the reason chlorpyrifos wasn’t banned more than a decade ago is that those in control at the EPA long before Trump took office didn’t actually get around to implementing a ban– although they were aware of the issue and certainly gave it a sustained look see. In 2007 (no typo), a Petition was filed by the Pesticide Action Network (PAN) and the Natural Resources Defense Council (NRDC) asking the EPA to revoke tolerances for the pesticide chlorpyrifos. In plain English,that means, to ban the susbstance from agricultural use (it had already been banned for household use.)
As part of that Petition, PAN and the NRDC:
presented scientific studies showing that children and infants who had been exposed prenatally to low doses of chlorpyrifos suffer harms such as reduced IQ, attention deficit disorders, and delayed motor development, that last into adulthood. (opinion, p. 11)
The Rakoff opinion– linked to above– devotes several pages to the EPA’s record of delay. In fact, in 2015, the Ninth Circuit described that record as “egregious” (p. 12), and despite the court setting a deadline,, it was not until November 2015 that the agency issued a proposed rule revoking all tolerances for chlorpyrifos. Finally, in December 2015, the court got fed up and ordered the EPA to get on with it.
Over to the opinion (p. 13) where Rakoff certainly minces no words:
Yet the EPA still equivocated and delayed. Accordingly, in December 2015, we ordered the EPA “to take final action by December 30, 2016 on its proposed revocation rule.” In June 2016, the EPA requested a six-month extension to continue scientific analysis, a request we characterized as “another variation on a theme of partial reports, missed deadlines, and vague promises of future action that has been repeated for the past nine years.” We found that a six-month delay was “not justified” in light of the previous time extensions and the EPA’s “continued failure to respond to the pressing health concerns presented by chlorpyrifos,” but granted a three- month extension to March 2017. (citations omitted).
In the meantime, the EPA issued a 2016 Risk Assessment concluding that estimated dietary exposure to chlorpyrifos at existing tolerances exceeded what was acceptable for all population groups analyzed, with the highest risks for young children. The Risk Assessment found that scientific literature “as a whole provides evidence of long-lasting neurodevelopmental disorders” linked to chlorpyrifos exposure, with any remaining scientific uncertainties insufficient to “undermine or reduce the confidence in the findings of the epidemiology studies.” The EPA concluded that its analysis of chlorpyrifos “continues to indicate that the risk from the potential aggregate exposure does not meet the FFDCA safety standard” and that “expected residues of chlorpyrifos on most individual food crops exceed the ‘reasonable certainty of no harm’ safety standard.” Chlorpyrifos; Tolerance Revocations; Notice of Data Availability and Request for Comment, 81 Fed. Reg. 81,049, 81,050 (Nov. 17, 2016).
So, note what happened here. As the Sacramento Bee recognizes in Court bans popular farm pesticide defended by Trump. What it means for farms, workers, kids:
In the late stages of the Obama administration, the EPA was in the process of banning the chemical. Shortly after President Donald Trump took office in 2017, then-EPA Administrator Scott Pruitt announced he was “reversing the previous administration’s steps” and would allow farmers to keep using chlorpyrifos.
The EPA failed to achieve anything for more than nine years (my emphasis). And then, on November 17 2016– after Trump was elected but before he was inaugurated, the agency finally got ’round to publishing “Chlorpyrifos; Tolerance Revocations; Notice of Data Availability and Request for Comment.” Well, how do we think that worked out?
Over to the opinion again for more detail on what the EPA did after Trump became President. In April 2017 (opinion p. 14):
Then, in the Order at issue in this case, the EPA reversed its position and denied the 2007 Petition on the merits, leaving chlorpyrifos tolerances in effect. Chlorpyrifos; Order Denying PANNA and NRDC’s Petition To Revoke Tolerances, 82 Fed. Reg. 16,581 (Apr. 5, 2017). The Order did not refute the agency’s previous scientific findings on chlorpyrifos or its conclusion that chlorpyrifos violated the FFDCA safety standard. Instead, the EPA stated that it would not revoke tolerances as “the science addressing neurodevelopmental effects remains unresolved.” Id. at 16,583. The EPA stated that it would not complete “any associated tolerance revocation of chlorpyrifos without first attempting to come to a clearer scientific resolution,” id., and claimed to have “discretion to determine the schedule” for reviewing the existing chlorpyrifos tolerances as long as it completed the chlorpyrifos registration review by FIFRA’s deadline of October 1, 2022, id. at 16,590.
Jerri-Lynn here: Now, If the EPA had acted and imposed a ban anytime after PAN and the NRDC filed their Petition in 2007, damage due to further chlorpyrifos use could have ceased more than a decade ago. Once restrictions were in place, it would have been harder, years later, for the Scott Pruitt EPA that wasn’t yet even a gleam in anyone’s eye to reverse such a policy. Business decisions and investments would have been made, industry practices would have changed, and it would have been much more difficult for the Trump EPA to reverse a previous policy– not to mention for any such reversal to survive judicial scrutiny.
I have written about how finalising the fiduciary rule– although it wasn’t quite implemented– have hampered Trump administration efforts to roll it back, as companies had already taken steps and made investments necessary to comply with what had been the expected effective date (see here).
I have also discussed how the Consumer Financial Protection Bureau’s delay in promulgating its mandatory arbitration ban (see here) opened the door to its overturn once Republicans controlled White House and Congress– a similar situation to what has occurred with the chlorpyrifos ban– but the mandatory arbitration ban scuttling will stand.
That chlorpyrifos still remains in use cannot solely be laid at the feet of Trump’s EPA.
If you read much of the coverage of last week’s decision, however, you’ll find little mention of that inconvenient truth. Oh, it’s mentioned, but in such a way that you need to know what you’re looking for to realize that the EPA had dropped the ball on this, setting the stage for the Trump EPA to act as it did. Where for example, is any mention that the court had to order the EPA “to take final action by December 30, 2016 on its proposed revocation rule.”
To belabor the point, let me quote from that CBS article again– because if you hadn’t read the full excerpt from the opinion I’ve quoted above, I think you would have given more credit to the EPA for prior action under the previous administration than is actually due:
In October 2015, the Obama administration proposed banning the pesticide’s use on food. A risk assessment memo issued by nine EPA scientists concluded: “There is a breadth of information available on the potential adverse neurodevelopmental effects in infants and children as a result of prenatal exposure to chlorpyrifos.”
Federal law requires EPA to ensure that pesticides used on food in the United States are safe for human consumption – especially children, who are typically far more sensitive to the negative effects of poisons.
Shortly after his appointment by President Trump in 2017, Pruitt announced he was rever[s]ing the Obama administration effort to ban chlorpyrifos, adopting Dow’s position that the science showing chlorpyrifos is harmful was inconclusive and flawed. (my emphasis)
This decision– as welcome on its face as it appears to be– is by no means final. The EPA could ask for a full hearing by the Ninth Circuit, or could appeal to the United States Supreme Court; under either scenario, the agency could also ask for a delay in implementing the ban the court has ruled must be in place in 60 days. Either the full Ninth Circuit, or the Supreme Court, could reverse this decision. Alternatively, the EPA could also eschew any appeal and comply with the ruling.
Given the magnitude of potential sales at stake, does anyone really think Dow will roll over and accept this decision? I’d be very surprised if it’s not gone into overdrive lobbying mode, and that administration lawyers are not working overtime to determine grounds for an appeal.
Whereas if a ban had been in place well before Trump took office, we wouldn’t now be awaiting his EPA’s decision whether to appeal– and have to factor in the likelihood that this decision survives– before we’ll know, for sure, whether chlorpyrifos is banned, for good, for agricultural uses in the United States.