August 9, 2018 – Earlier this year, the Emmett Environmental Law & Policy Clinic submitted an amicus brief on behalf of several health professional organizations in a case challenging the Environmental Protection Agency’s failure to ban agricultural uses of the organophosphate pesticide chlorpyrifos. Today, in a victory for public health and for science-based decisionmaking, the Ninth Circuit Court of Appeals overturned EPA’s decision and ordered the agency to ban the pesticide within 60 days.
In 2016, EPA had proposed to remove all food tolerances for chlorpyrifos under the Federal Food Drug and Cosmetic Act (FFDCA)—an action that would have prohibited all use of the pesticide on food crops. Last year, however, Scott Pruitt reversed course and decided not to ban it, claiming that the science was not certain enough to justify researching a decision. This action was one of many examples of how EPA under the Trump administration is ignoring science and basing its decisions on the wishes of industry.
A coalition of environmental and farmworkers’ organizations represented by Earthjustice challenged that reversal in the Ninth Circuit. The Clinic, representing the Alliance of Nurses for Health Environments, American Academy of Pediatrics, American Public Health Association, Migrant Clinicians Network, Physicians for Social Responsibility (PSR) and the San Francisco Bay Area Chapter of PSR, submitted an amicus brief in support of this challenge. The brief reviewed the extensive scientific evidence indicating that children are vulnerable to long-lasting neurological harm from exposure to chlorpyrifos during pregnancy, even at levels far below the current tolerances permitted by EPA. In particular, the studies show that chlorpyrifos can alter the very structure of the brain, as well as leading to attention deficit hyperactivity disorder and other behavioral problems. In light of the large and robust research data demonstrating these harms, the brief argued that EPA could not reasonably cite scientific uncertainty as a basis for failing to take action.
In court, EPA did not even attempt to defend its decision on the merits. Instead, the agency argued only that the petitioners could not challenge EPA’s action in court at this time. The court rejected these arguments, castigating the agency for its “delay tactics.” In particular, the court held that it had jurisdiction to hear the case, despite the fact that the petitioners had also filed administrative objections with EPA. In addition, the court held that petitioners’ challenge was not barred by the doctrine of exhaustion of administrative remedies because they “have been waiting over a year for EPA action on their objections, and over eleven years for an EPA decision on chlorpyrifos tolerances, while being continually exposed to the chemical’s effects.”
On the merits, the court explained that under the FFDCA, “EPA bears a continuing obligation to revoke tolerances that it can no longer find with a ‘reasonable certainty’ are safe.” Here, EPA’s 2016 risk assessment had found that “expected residues of chlorpyrifos on most individual food crops exceed the ‘reasonable certainty of no harm’ safety standard.” The Trump administration’s 2017 order did not reverse this finding, but merely asserted that there was “significant uncertainty” regarding the health effects of chlorpyrifos. The court held that this invocation of uncertainty did not allow the agency to avoid taking action: “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.”
This decision is a strong reaffirmation of the principle that EPA must act based on the best available science, a principle that the Trump Administration is trying to undermine in a variety of other contexts, and that the Clinic is fighting to defend.