Keeping Americans' Food Safe
In 2015, in response to a 2007 petition and the initiation of litigation by public health groups, the Environmental Protection Agency (EPA) agreed that the pesticide chlorpyrifos should be disallowed from use on food crops because of concern about human health impacts. The pesticide is used on more than 80 food crops, including apples, strawberries, and bananas, and has been shown to negatively impact brain development and the functioning of the central nervous system.
The Ninth Circuit Court of Appeals in Pesticide Action Network North America v. United States Environmental Protection Agency ordered the EPA to take final action on the proposed revocation by the end of 2016. In March 2017, EPA Administrator Scott Pruitt reversed course, denying the 2007 administration petition and withdrawing the proposed revocation, thereby allowing the pesticide chlorpyrifos to continue being applied on food crops.
On the same day in June 2017, the coalition of public health groups filed with the EPA an administrative objection to the agency’s March 2017 denial of the groups’ 2007 administrative petition and also filed a petition for review in the Ninth Circuit challenging the March 2017 denial of the 2007 administrative petition.
In June 2017, attorneys general from seven states filed their own administrative objection to the EPA's March 2017 denial of the 2007 administrative petition and the reversal of the agency’s 2015 proposed rule as being unauthorized by law and in violation of two orders from the Ninth Circuit.
The next month, six attorneys general filed a motion to intervene in League of United Latin American Citizens et al. v. Pruitt, related to Pesticide Action Network North America. League is the public health organizations’ Ninth Circuit challenge to EPA’s March 2017 denial of the 2007 administrative petition. The litigation asks the court to find that the EPA cannot continue to allow chlorpyrifos on food crops unless and until it makes an affirmative human safety determination. The motion to intervene was granted in December 2017. In March 2018, California and Hawai'i were granted their motion to intervene in League, along with the coalition of six other states.
In August 2018, the Ninth Circuit issued an opinion in League that directed the EPA to ban the use of chlorpyrifos. The court found there was no justification for the EPA’s 2017 order allowing the use of the toxic pesticide in the face of scientific evidence that its residue on food causes neurodevelopmental damage to children. The EPA filed a request that the Ninth Circuit grant en banc review; in February 2019, the Ninth Circuit granted the request for en banc review. Oral arguments in the en banc review were held in March 2019.
Less than a month later, in April 2019, the Ninth Circuit’s en banc panel released an order which requires the EPA to respond within 90 days to the 2017 administrative objection regarding the EPA’s failure to disallow the continued use of chlorpyrifos on food crops. In July 2019, the EPA met the 90 day court-mandated deadline, but denied the administrative objections to its March 2017 denial of the public health groups’ 2007 administrative petition to disallow the use of the pesticide on food crops.
In August 2019, New York led a coalition of six attorneys general in returning to the Ninth Circuit and filing a new lawsuit challenging the EPA’s July 2019 order. The attorneys general noted that the July 2019 order is arbitrary and capricious and contrary to law in numerous respects, including violating the Federal Food, Drug and Cosmetic Act's (FFDCA) requirement that the EPA ensures that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to pesticide chemical residues. Further, the order improperly continued the EPA’s years-long efforts to delay addressing the pesticide until at least the summer of 2020 and the order unreasonably departed from the agency’s prior determinations that chlorpyrifos could not be found to be safe.
The day following the initiation of the new lawsuit, the eight states involved in the pre-existing Ninth Circuit litigation (initiated in June 2017), filed a motion in opposition to the EPA’s motion to dismiss their June 2017 complaint as the EPA argued that the release of the July 2019 order had made the litigation moot. The attorneys general noted that denying the motion to dismiss and consolidating the June 2017 litigation with the just-filed August 2019 litigation would allow for the prompt resolution of the underlying dispute between the agency and the states over the EPA’s long-running attempts to avoid disallowing the use of the pesticide on food crops. In October 2019, the court granted the EPA’s motion to dismiss and denied the states’ motion to consolidate the litigation, but accepted the states’ August 2019 lawsuit.
In December 2019, the states filed their opening brief challenging EPA’s July 2019 order. In their brief, the coalition asked the court to compel EPA to revoke chlorpyrifos tolerances as it is the only relief available that is consistent with FFDCA’s instruction that the EPA may not leave tolerances in effect without a finding that they are safe due to the agency’s repeated violation of this statutory provision.
Keeping Agricultural Workers Safe
Defending the Agricultural Worker Protection Standard
In 2015, the EPA strengthened the Agricultural Worker Protection Standard’s (WPS) training requirements, which were implemented in 1992 to reduce the number of illnesses and injuries that agriculture workers suffer from exposure to dangerous pesticides. The 2015 updates included enabling agriculture workers to learn how to minimize family member exposure to pesticides and access information about the hazards posed by specific pesticides.
The EPA suspended the new training requirements without following notice and comment procedural requirements. In May 2018, the attorneys general of New York, California and Maryland filed a lawsuit against the EPA for delaying implementation of WPS as arbitrary and capricious in violation of the Administrative Procedure Act (APA). In response, the following month, the EPA reversed course and announced its intention to publish the pesticide safety training materials in the Federal Register. In March 2019, the Pesticide Registration Improvement Act was signed into law and requires EPA to implement the WPS.
In November 2019, the EPA issued a proposed rule weakening protections provided by the 2015 WPS and altering its Application Exclusion Zone (AEZ) requirements to allow pesticide application in the presence of workers and persons on nearby adjacent properties. In January 2020, New York Attorney General Letitia James and California Attorney General Xavier Becerra led a coalition of seven attorneys general in filing comments raising concerns about the proposed rule. In their comments, the attorneys general highlighted that the EPA’s revisions to its AEZ requirements reflect unjustified and unsupported departures from the EPA’s prior position under the WPS, lack sufficient economic analysis to justify the proposed revisions, and ignore the EPA’s obligation to identify and address the disproportionate impact of the proposed rule on minority and low-income communities.
In October 2020, the EPA issued the final rule. The final rule weakens AEZ requirements, including exempting immediate family members of farm owners from protection under the rule and modifying the AEZ so it is applicable and enforceable only on an agricultural employer’s property.
In December 2020, New York Attorney General James led a coalition of 5 states in filing a lawsuit in federal district court in New York challenging the October 2020 rule. The lawsuit noted that the final rule violates the APA because the EPA’s weakening of AEZ requirements departs from the agency’s prior recent position without justification. Further, the October 2020 rule violates the APA because it is inconsistent with the agency’s obligations under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to protect humans and the environment from unreasonable adverse effects of pesticides. The attorneys general requested that the rule be vacated.
Insisting on Proper Assessment of Dangerous Pesticides
Attorneys general have also insisted that the EPA properly assess the health risks posed by the use of particular pesticides by agricultural workers. In February 2020, the EPA released a draft human health risk assessment for the pesticide 1,3-Dichloropropene (1,3-D) — commonly known by the brand name Telone. 1,3-D is a fumigant insecticide that is applied to soil before crops are planted. More than 33 million pounds of 1,3-D were applied on farms between 2013 and 2017, making it one of the nation’s most-used pesticides. Short term health impacts of 1,3-D exposure include coughing, throat and lung irritation, and difficulty breathing, while long-term exposure is associated with an elevated cancer risk. The EPA’s draft risk assessment is part of a reevaluation of the pesticide’s impacts on public health and the environment that the agency is required to conduct every 15 years under FIFRA. In its assessment, the EPA downgraded 1,3-D’s cancer risk rating from “likely to be carcinogenic to humans” to “suggestive evidence of carcinogenic potential.”
In April 2020, California Attorney General Becerra led a coalition of eight attorneys general in filing comments urging the EPA to revise its assessment. The coalition noted in particular that downgrading 1,3-D’s cancer risk rating dangerously ignores science and downplays the risks individuals face when they are exposed to the pesticide. The attorneys general emphasized that since at least the mid-1980s, the EPA and other regulators have consistently found that 1,3-D is a likely human carcinogen. The coalition highlighted that farmworkers and neighboring communities are disproportionately exposed to 1,3-D due to the pesticide’s rapid dispersal in the air after application on farmland, and that the EPA has a responsibility to such communities to accurately describe the cancer risks of 1,3-D exposure.
Protecting Endangered Species
In May 2019, the EPA proposed changes to the agency’s process for evaluating risks posed by pesticides to endangered species. The proposal limits the scope of the agency’s review of the effects of pesticides on endangered species, including species on the brink of extinction, and “precludes any analysis of the effects of climate change” on the habitats of listed species.
In August 2019, New Mexico Attorney General Hector Balderas led a coalition of eleven attorneys general in filing comments objecting to the “ill-advised changes.” The comments warned that the EPA’s proposal contravenes the Endangered Species Act’s “policy of institutionalized caution" by unlawfully allowing the EPA to rely on incomplete and unreliable data, unreasonably restricting the potential habitat areas to be analyzed that might be affected by pesticide use. The attorneys general also pointed out that the proposal circumvents consultation with the agencies — the U.S. Fish and Wildlife Service and the National Marine Fisheries Service — that have the most species expertise and are charged with implementing the Endangered Species Act.
In November 2019, the EPA released a draft risk assessment for flonicamid, a pesticide that is particularly toxic to bees and is manufactured by the Japanese corporation ISK Biosciences (ISK). Registered uses of flonicamid have been shown to expose bees to up to 51 times the amount of flonicamid that would cause them substantial harm. In order for a pesticide to receive regulatory approval for use, it must be registered by the EPA pursuant to FIFRA. Under FIFRA, the EPA must determine that the pesticide “will perform its intended function without unreasonable adverse effects on the environment,” and that “when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment.” The EPA reevaluates pesticide registrations every 15 years, and as part of this review, the EPA can request additional data and is able to suspend the registration if the requested data is not provided.
California Attorney General Xavier Becerra filed comments in January 2020 criticizing the EPA for an inadequate review of the pesticide and called on the agency to present a full picture of the pesticide’s environmental impacts. In his comments, Attorney General Becerra noted that despite utilizing new studies showing that flonicamid poses a significant risk to pollinators, the EPA failed to collect data from further follow-up studies, as required under FIFRA, and now proposes to move the registration process forward with incomplete information. The comments urged the EPA to “revise the draft ecological risk assessment to fully characterize flonicamid’s risks to pollinators” by engaging in more extensive study of flonicamid’s impacts and requiring ISK to submit the necessary follow-up studies.
In September 2020, the EPA released a proposed interim registration review decision for flonicamid. The proposed decision states that the manufacturer has committed to conducting additional, required pollinator studies, and that if any data from higher-tier studies changes any risk conclusions, the EPA will address the issue in its final interim decision. However, the EPA has not committed to actually reviewing the data from higher-tier studies before issuing a final interim decision.
In November 2020, California Attorney General Becerra filed comments urging the EPA to review the follow-up studies, revise its ecological risk assessment, propose any necessary mitigation, and circulate its findings for public comment before issuing a registration decision. Attorney General Becerra emphasized that if the EPA moves forward before it can sufficiently characterize flonicamid’s risks to pollinators, it will violate the FIFRA requirement that the EPA determine flonicamid’s registration will not cause unreasonable adverse environmental effects.
Sulfoxaflor is a pesticide that poses risks to pollinators due to its toxicity. Sulfoxaflor was originally registered under FIFRA in 2013. A successful court challenge, however, reversed its registration. Studies subsequently demonstrated that the pesticide is toxic to bees. Despite this, in July 2019, the EPA issued pesticide registrations for numerous new uses of sulfoxaflor and removed restrictions on its use and on mitigation measures that had previously been in place. Environmental groups filed a lawsuit in the Ninth Circuit Court of Appeals in August 2019 challenging the EPA’s improper registration process.
In September 2020, California Attorney General Becerra led a coalition of nine state attorneys general in filing an amicus brief in support of the lawsuit. In their brief, the coalition highlighted the EPA’s failure to provide the public an opportunity to review and comment on the new applications for registration, disregarding critical input from a variety of stakeholders. The registration decision also harms states’ environmental and economic interests by undermining states’ efforts to prevent pollinator decline and placing the regulatory burden on states. The coalition also noted that the registration decision violates the Endangered Species Act (ESA) and urged the court to vacate the decision.
In October 2020, the EPA filed a motion to voluntarily remand the pesticide registration for sulfoxaflor back to the agency without vacating the registration. The EPA recognized it had failed to comply with the ESA during the registration process and requested that the registration be sent back to the EPA so that it could correct the ESA error. Further, the agency argued that the registration should not be vacated because it claimed that removing the pesticide from the market would likely increase the use of older, riskier alternatives.
In December 2020, California Attorney General led a coalition of eleven attorneys general in filing an amicus brief in opposition to the EPA’s October 2020 motion to remand the registration without vacatur. The attorneys general noted that granting EPA’s motion would return the pesticide to the back of the agency’s five-year backlog of pesticides awaiting ESA analyses, frustrating timely review of the registration under FIFRA. The amicus brief also pointed out that remanding without vacatur would provide the EPA with a roadmap for avoiding judicial review of pesticide registrations in the future under FIFRA by admitting that the registration violates the ESA and moving for remand without vacatur where the registration would languish in the ESA backlog. Contra EPA’s contention otherwise, granting the motion would have the effect of allowing potentially risky pesticides to remain on the market.
Insecticide Risk Assessments
In May 2020, the EPA released a draft human health risk assessment for the insecticide finpronil. Fipronil is primarily used to control termites, roaches, and ants, and in pet treatments for fleas and ticks. Exposure to fipronil, most frequently from in-home pet treatments, has been found to cause neurological, dermal, ocular, and respiratory symptoms. After application, the toxic substance lingers in the environment for years, polluting waterways and wastewater treatment facilities and leaching into water sources through everyday activities such as bathing treated pets, washing hands after application, and mopping indoor areas.
In August 2020, California Attorney General Xavier Becerra submitted comments criticizing the draft risk assessment for several gaps and inconsistencies and urged the EPA to resolve them before proceeding further with fipronil registration. In the comments, Attorney General Becerra pointed out that the EPA recognizes fipronil pollutes California’s waterways, yet failed to analyze why the pollution is occurring or how the pollution in urban waterbodies affects the broader environment. He also noted that the assessment ignores scientific evidence that fipronil is contaminating wastewater and sewage treatment plants and highlighted the assessment’s contradictory conclusions regarding the human health impacts associated with fipronil.