Court bans harmful WWII-era pesticide, says EPA violated law

A federal appeals court on Thursday struck down the Trump administration’s decision to not ban a pesticide proven to be dangerous for children.

Following a legal challenge from a slate of environmental, Latin American and agricultural organizations, the U.S. Court of Appeals for the Ninth Circuit ordered the Environmental Protection Agency to revoke its approval for the pesticide chlorpyrifos and remove it from sale within 60 days. The states of New York, Maryland, Vermont, Washington, Massachusetts, California and Hawaii, as well as the District of Columbia, also intervened in support of the legal challenge.

The EPA in 2016 determined chlorpyrifos, a pesticide initially developed as a World War II nerve gas now used on crops to kill insects, exceeded “the ‘reasonable certainty of no harm’ safety standard” set forth in the Federal Food, Drug and Cosmetic Act. Studies cited by the ruling have determined the pesticide is linked to harmful effects, particularly in young children. This includes delays in infants’ mental development; abnormal reflexes; attention and behavioral problems; and other “neurochemical and behavioral alterations [in the young] that persist into adulthood.”

In addition to farmworkers who handle and apply the pesticide, the American public can be exposed to chlorpyrifos through contaminated water, residues on food and spray drift from pesticide application, nonprofit organization Earthjustice noted.

According to the ruling, the EPA currently has tolerances for chlorpyrifos for 80 food crops. The agency had proposed revoking tolerances for the pesticide — the use of which was first limited in 1998 — in 2015, but no final action on the proposed rule took place.

Instead, the Trump administration issued a new order in April 2017 denying a petition against the use of chlorpyrifos and left the tolerances on the pesticide intact. At the time, the EPA claimed “the science addressing neurodevelopmental effects [of chlorpyrifos] remains unresolved.”

It was the 2017 order the environmental groups and states were challenging, arguing it violated the FFDCA and that the request for additional scientific research was “not a valid ground” for maintaining the tolerance. The FFDCA specifies a government administrator “shall modify or revoke a tolerance if the administrator determines it is not safe,” meaning there is a “reasonable certainty that no harm will result from aggregate exposure to the pesticide.”

The panel of judges found “there was no justification for the EPA’s decision in its 2017 order to maintain a tolerance for chlorpyrifos in the face of scientific evidence that its residue on food causes neurodevelopmental damage to children,” Judge Jed S. Rakoff wrote in the court’s opinion. “The panel further held that the EPA cannot refuse to act because of possible contradiction in the future by evidence.”

The EPA “present[ed] no arguments in defense of its decision” to maintain the pesticide tolerances, the court noted. The Trump administration disputed the legal challenge by claiming the court did not have jurisdiction over the decision until the EPA responded to the petitioners’ objections.

The organizations and states behind the legal challenge hailed Thursday’s ruling as a victory.

“We are thankful that our democracy has a checks and balances and it includes our judicial system,” Diana Perez, Washington state director of the League of United Latin American Citizens, said in a statement. “It should be a no-brainer when it comes to the health of our children. For this administration to stop protecting our most precious treasure, our children, from the harmful effects of pesticides is deplorable.”

New York Attorney General Barbara Underwood called the court ruling as a “huge win for our children’s health.”

“The EPA’s most fundamental responsibility is to protect the health and safety of New Yorkers and all Americans — especially our children,” Underwood said in a statement. “Yet the Trump EPA continues to put corporations before people. As we’ve shown again and again in court, when the Trump administration breaks the law, we will fight back — and we will win.”

Thursday’s ruling was granted in a split decision with one judge dissenting, meaning the Trump administration could appeal the ruling to the U.S. Supreme Court. In a statement, EPA spokesman Michael Abboud told the New York Times the agency was “reviewing the decision” and claimed data regarding the pesticide’s effects “remains inaccessible and has hindered the agency’s ongoing process to fully evaluate the pesticide using the best available, transparent science.”

The legal challenge that led to Friday’s ruling is just one of many brought against the Trump administration over its environmental policies. The New York Times reported in March that state attorneys general have filed more than two dozen environmental lawsuits against the administration since January 2017 — and the number continues to climb.

The Center for Biological Diversity noted on its website it has filed 82 lawsuits against the administration since Trump’s inauguration, while the National Resources Defense Council, a petitioner in the chlorpyrifos lawsuit, announced in April it had filed a lawsuit against the administration roughly every eight days since the inauguration.