9th Circuit Orders EPA to Take Action on Commonly Used Pesticide That Causes Developmental Harms

The Ninth Circuit ruled on Thursday that the Environmental Protection Agency (EPA) should ban or modify tolerances for chlorpyrifos, a pesticide, for uses on food, based on allegations that the chemical is not safe for farm workers and causes developmental harm in children. 

The 116-page opinion, which included a dissent, followed the request from various organizations, represented by Earthjustice, and several states asking for a review of the EPA approval of the pesticide. 

“This ruling is a huge victory for children and communities across the country who will finally be spared by needless poisonings and lifelong learning disabilities,” Earthjustice said in a press release. 

The Ninth Circuit decided that the EPA must ban approved chlorpyrifos uses within 60 days, except any restricted uses that it determines before the end of the 60 days are safe for farmworkers and children. The EPA was initially asked to ban chlorpyrifos in 2007, and although the Obama administration was working towards banning it, the Trump administration did not continue the process. President Joe Biden, according to Earthjustice, was planning to review the decision to continue allowing chlorpyrifos sales. 

Patti Goldman, an attorney with Earthjustice said, the “EPA must now follow the law, ban chlorpyrifos, and protect children and farmworkers from a pesticide we know is linked to numerous developmental harms. It would be unconscionable for (the) EPA to expose children to this pesticide for any longer. We urge it to do the right thing at long last. However, chlorpyrifos is just one of dozens of organophosphates used on our fruits and vegetables. So while we celebrate this win today, (the) EPA must also ban all organophosphates to fully protect public health.”

The organization explained that although chlorpyrifos is one of the most common insecticides, and is used on various crops, it has been banned from home use. However, residue from the chemical can be found on the outside of produce and in some drinking water, particularly near fields where it is used. 

The matter was heard by a panel of three judges, Judge Jed S. Rakoff wrote the opinion which was agreed with by Judge Jacqueline H. Nguyen. They granted the plaintiffs’ requests for review and vacated a 2017 and a 2019 order remanding the registrations back to the EPA. The EPA will either need to revoke all uses for chlorpyrifos or modify the tolerances only allowing amounts that will not cause harm from exposure to children. 

Judge Jay S. Bybee dissented, arguing that the EPA found the chemical and its residue to be safe under the Federal Food, Drug, and Cosmetic Act, and the court having a different opinion did not mean that the EPA’s ruling was “arbitrary and capricious.” Further, he said that chlorpyrifos is “one of the most important pesticides in the United States.” 

The Center for Food Safety reported in a press release on Thursday that not having a federal ban on chlorpyrifos led some states, including Hawaii, California, and New York to ban the pesticide. The organization alleged that the EPA is aware of its toxicity and harm it can cause when children are exposed, specifically when infants are exposed in the womb. It has been known to cause developmental disorders and reduced IQ.