This post was originally published on Legal Planet. Reprinted with permission.
Chlorpyrifos is one of the most widely used pesticides in America, although it has been banned in the European Union. Last week, the Ninth Circuit took the extraordinary step of ordering the U.S. Environmental Protection Agency (EPA) point-blank to ban or reduce traces of chlorpyrifos in food. A dissenter accused the majority of misreading the statute in question and abusing its discretion by limiting EPA's options so drastically and giving it only 60 days to act. Warning: The majority and dissenting opinions cover 116 pages, so I'll necessarily be leaving out a lot of details and nuances.
Who is right depends partly on how you read the statute and partly on whether EPA was acting in good faith. Judge Bybee thought that EPA had acted in good faith, while the majority clearly thought EPA had been intentionally dragging its feet for 14 years to avoid implementing its statutory mandate.
Given chlorpyrifos' widespread use, it is economically very important. That also means it is likely to be present in many foods. That's a big worry, since there's evidence that exposure to chlorpyrifos before birth can cause neurological problems in children, including lower IQ and tremors. In 2007, after studies began providing evidence of harmful effects from exposure on children, an NGO petitioned EPA to ban all traces of the substance in foods.
Despite preliminary findings that chlorpyrifos is unsafe, and despite repeated judicial demands that it move more quickly, EPA took more than a decade to get around to ruling on the petition. Under President Obama, EPA seemed to be moving toward a ban, but then . . . Trump. The Trump EPA finally rejected the NGO petition after the court issued an ultimatum demanding a decision. The current Ninth Circuit ruling concerned that denial.
The statute governing permissible food levels for pesticide traces (called "tolerances") contains two sentences telling EPA what to do about pesticide risks in food:
"The Administrator [of EPA] may establish or leave in effect an exemption from the requirement for a tolerance for a pesticide chemical residue in or on food only if the Administrator determines that the exemption is safe. The Administrator shall modify or revoke an exemption if the Administrator determines it is not safe."
EPA said it was unsure whether the pesticide was safe in food at currently permitted levels. The Ninth Circuit majority said that, since EPA could not determine the pesticide was safe, it could not "leave in effect" the current exemption. Instead, according to the majority, the second sentence requires it to modify or revoke the exemption.
The dissenter read the two sentences to apply in different circumstances: the first sentence when EPA is acting on a statutory schedule, the second sentence between scheduled safety evaluations. That's not an impossible reading of the statute. Still, if that's what Congress was trying to say, it certainly chose to do so obliquely. In the absence of any legislative history supporting the dissenter's theory, it seems more clever than sound.
The other issue is what to do. Under the majority's reading of the statute, given that EPA could not make an affirmative finding of safety, it had no choice but to either revoke or modify the tolerances for chlorpyrifos. Under normal circumstances, the 60-day deadline would be entirely inappropriate. The fact that the majority imposed this deadline was surely a product of its impatience with what it considered to be a willful refusal by EPA to protect public health.
Given that by 2007, the evidence suggested a possible serious risk to children from a very widely used chemical, EPA seems not to have prioritized the issue. The agency's dilatory pace seems explicable only by the economic impact of banning chlorpyrifos. Under the statute, however, public health is supposed to be the only consideration. Even so, by giving EPA so little time to craft a decision, the court may have overreacted. It remains to be seen how the Biden administration will respond to the order.
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Daniel Farber | May 7, 2021
Chlorpyrifos is one of the most widely used pesticides in America, although it has been banned in the European Union. Last week, the Ninth Circuit took the extraordinary step of ordering the U.S. Environmental Protection Agency (EPA) point-blank to ban or reduce traces of chlorpyrifos in food. A dissenter accused the majority of misreading the statute in question and abusing its discretion by limiting EPA's options so drastically and giving it only 60 days to act. Warning: The majority and dissenting opinions cover 116 pages, so I'll necessarily be leaving out a lot of details and nuances.
Brian Gumm | May 6, 2021
Companies using fossil fuels like oil, natural gas, and coal are facing heavy pressure to reduce their carbon footprint. If they don’t, they could get hit with financial penalties or be completely shut down. In response, these corporations have come up with a treatment of sorts -- it’s called carbon capture and sequestration, or CCS. The idea is that the industry can continue operating as it always has, but as a caveat, it will install a system to strip carbon from emissions. The carbon will be funneled through pipelines deep into the ground, where it will be buried forever. As a result, plants can keep running, businesses rally on as usual, there’s less pollution in the air, everyone wins. Right? Not exactly. As Connect the Dots host Rob Verchick and his guests discuss in this episode, CCS is not nearly comprehensive enough to reduce emissions at a level and rate necessary to make a difference.
James Goodwin | May 4, 2021
By the time the environmental justice movement began taking shape in the 1980s, communities of color had already been suffering from the disproportionate burdens of pollution for decades. Since then, evidence of racially discriminatory patterns in the distribution of environmental harms has only continued to mount.
Karen Sokol | May 4, 2021
A week after taking office, President Joe Biden issued an executive order “on tackling the climate crisis” that aims to face the challenge comprehensively and equitably. Biden has quickly appointed and seen confirmed a team of leaders who are committed to all aspects of this mission. Our country is finally on the cusp of meaningful climate action. The climate action train is so popular that even fossil fuel companies, which have historically sought to derail it, are now saying they’re on board. We should, of course, welcome all sincere collaborators; the fossil fuel industry is not among them.
David Flores | May 3, 2021
As Maryland heads into the final stretch of a collective effort to clean up the Chesapeake Bay, it has inexplicably passed over its best opportunity in years to modernize regulation of industrial stormwater -- rain and snow that collects toxic pollution as it runs off factories, warehouses, scrap metal dealers, and other industrial sites. Earlier this year, Maryland released a proposed revision of its general water pollution permit, which limits the type and amount of pollutants that facilities can discharge into public waters and sets monitoring and reporting requirements to protect public and environmental health. Unfortunately, the state missed an important opportunity to bring stormwater regulation from the last century into the present -- but it’s not too late to change course.
Daniel Farber | April 29, 2021
April 30 marks President Biden's first 100 days in office. He's appointed a great climate team and is negotiating an infrastructure bill that focuses on climate change. With luck, those actions will produce major environmental gains down the road. There are also some solid gains in the form of actions that have already come to fruition. Here's where things stand.
Alina Gonzalez | April 29, 2021
In 2017, Puerto Rico was hit hard by two major hurricanes, Irma and Maria. First came Irma, a Category 5 storm that pummeled the island, leaving a trail of destruction. Less than two weeks later came Maria, another Category 5 storm that directly hit the island in what became the worst natural disaster in the U.S. territory's history. The storm moved directly across the island, knocking out electricity and inundating towns with floodwaters and mudslides. Historically, Puerto Rico's ability to recover from tropical storms and other disasters has depended on the federal government's efforts to ensure that communities get the funds they need to reignite economic growth and development. However, the Trump administration greatly slowed -- and deliberately obstructed -- Puerto Rico's progress in repairing and rebuilding the island's infrastructure. Thankfully, the Biden administration has reversed course by lifting Trump-era restrictions on disaster relief.
Minor Sinclair | April 28, 2021
When I think about climate, I also think about jobs. Jobs that don’t expose workers to toxins, COVID-19, or abuse. Quality jobs for workers and communities that reduce our carbon footprint and facilitate our transition to a clean economy. Jobs with protections and security in a changing economy. We simply cannot protect public health and the environment without addressing workers’ rights. With this in mind, it's perhaps no coincidence that we’re hiring two new policy analysts to enhance our research and advocacy around climate and worker justice. We'd love to have your help finding great candidates for these positions. Please spread the word and maybe even consider applying to one of these jobs yourself! CPR encourages people with underrepresented backgrounds in the nonprofit sector to apply, including people of color.
James Goodwin | April 27, 2021
President Joe Biden's April 28 speech to a joint session of Congress -- his first major address since his inauguration -- offers him a chance to outline and defend his policy priorities. He should use this opportunity to articulate a positive vision of regulation as an institution within our democracy and to champion the crucial role it plays in promoting the public interest.