January 01, 2018

Ninth Circuit Upholds EPA Pesticide “Action”

Patrick Paul

The United States Court of Appeals for the Ninth Circuit in July 2017, in a decision titled In Re Pesticide Action Network North America, No. 14-72794, denied a motion for mandamus relief filed by the Pesticide Action Network North America and Natural Resources Defense Council (together, PANNA). For more than 10 years, PANNA sought to require the United States Environmental Protection Agency (EPA) to act further on a petition to ban a pesticide—chlorpyrifos (O,O-diethyl-0-3,5,6-trichloro-2-pyridyl phosphorothioate)—pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA) and to cancel all related registrations under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

PANNA first filed an administrative petition with EPA in 2007 seeking revocation of all food tolerances and cancellation of all chlorpyrifos registrations. After years of EPA inaction, in 2014 PANNA petitioned the Ninth Circuit for a writ of mandamus requiring the agency to issue a response to its 2007 petition. Previously, on August 10, 2015, the Ninth Circuit had ordered EPA to “issue either a proposed or final revocation rule or a full and final response” to PANNA’s administrative petition. In re Pesticide Action Network N. Am., 798 F.3d 809, 814 (9th Cir. 2015) (emphasis added). In yet another published order, the same court required EPA to “take final action” on the petition by March 31, 2017. In re Pesticide Action Network N. Am., 840 F.3d 1014, 1015 (9th Cir. 2016).

Fully utilizing its permitted time allotment, EPA denied the petition on March 29, 2017. PANNA then sought further mandamus relief on the grounds that EPA’s denial was inadequate because it contained no new safety findings and no final determination on whether chlorpyrifos food tolerances should be revoked. See 82 Fed. Reg. 16,581 (Apr. 5, 2017).

This time, the Ninth Circuit denied PANNA’s petition, observing that further relief was premature, as PANNA was now objecting to the merits of EPA’s action (denial) and not simply whether EPA had taken any action. The court observed that it had simply required EPA to take “final action” on the petition. Although the court determined that the agency “dragged its heels for nearly a decade,” it nevertheless acknowledged that EPA ultimately complied with the court order requiring action.

Section 408 of the FFDCA authorizes EPA to establish maximum residue limits, or “tolerances,” for pesticide residues in food and feed commodities. Without such a tolerance or exemption, a food containing a pesticide residue is considered “adulterated” under section 402 of the FFDCA and may not be legally moved in interstate commerce. The Food Quality Protection Act of 1996 (FQPA) amended section 408 of the FFDCA by establishing a detailed safety standard for pesticides and integrating EPA’s regulation of pesticide food residues under the FFDCA with the agency’s registration and reevaluation of pesticides under FIFRA. The standard for issuing or maintaining a tolerance under section 408(b)(2)(A)(i) of the FFDCA is whether it is “safe.” Section 408(b)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.”

Although the FFDCA authorizes the establishment of limits for pesticide residues in food, section 3(a) of FIFRA requires the approval of pesticides prior to their sale and distribution and establishes a registration regime for regulating the use of pesticides. FIFRA regulates pesticide use in conjunction with its registration scheme by requiring EPA review and approval of pesticide labels and specifying that use of a pesticide inconsistent with its label is a violation of federal law. In the FQPA, Congress essentially connected the two statutes (FFDCA and FIFRA) by mandating that the FFDCA safety standard be used as a criterion in FIFRA registration actions regarding pesticide uses that result in dietary risk from residues in or on food (see FIFRA § 2(bb)), and directing that EPA coordinate, to the extent practicable, revocations of tolerances with pesticide cancellations under FIFRA. See FFDCA § 408(1)(1). Section 3(g) of FIFRA requires EPA to reevaluate pesticides under the FIFRA standard—which includes a determination regarding the safety of existing FFDCA tolerances—every 15 years under a program known as “registration review.” The deadline for completing the registration review for chlorpyrifos is October 1, 2022.

EPA describes chlorpyrifos as a broad-spectrum, chlorinated organophosphate insecticide that has been registered for use in the United States since 1965. By pounds of active ingredient, it is the most widely used conventional insecticide in the country. Currently, registered uses include a large variety of food crops (e.g., tree fruits and nuts, many types of small fruits and vegetables such as vegetable seed treatments, grain and oilseed crops, and cotton), and nonfood use settings (e.g., ornamental and agricultural seed production, nonresidential turf, industrial sites and rights of way, greenhouse and nursery production, sod farms, pulpwood production, public health protection, and wood protection). EPA maintains that for some of these crops, chlorpyrifos currently is the only cost-effective choice for control of certain insect pests. In 2000, however, the chlorpyrifos registrants reached an agreement with EPA to voluntarily cancel all residential use products except those registered for ant and roach baits in child-resistant packaging and fire ant mound treatments. Consequently, chlorpyrifos may not be used in ordinary household garden use.

PANNA and public-interest groups like Earthjustice are unhappy with the Ninth Circuit decision, noting it effectively lets EPA kick the can down the road while potentially allowing public exposure to a harmful pesticide. Although ultimately the Ninth Circuit might agree with the merits of PANNA’s claims, in the interim it has determined them to be premature as EPA had in fact acted, albeit not in the manner the public-interest groups would have preferred. Undeterred, these groups succeeded just over a week after the Ninth Circuit decision in introducing legislation (S.1624)—titled Protect Children, Farmers, and Farmworkers from Nerve Agent Pesticides Act of 2017—which would amend the FFDCA to prohibit chlorpyrifos and would require an assessment of the neurodevelopmental effects and other low-dose effects that exposure to organophosphate pesticides may have on agricultural workers and children. In the more than five months since its introduction, the bill has sat dormant in the Senate Committee on Agriculture, Nutrition, and Forestry. Given the lack of significant legislative progress in the current Congress, the success of this legislation could only generously be described as “possible.”

Patrick Paul

Mr. Paul is a partner in the Phoenix, Arizona, office of Snell & Wilmer L.L.P., and a member of the editorial board of Natural Resources & Environment. He may be reached at ppaul@swlaw.com.