On Thursday, the Environmental Protection Agency (EPA) asked the court overseeing a complaint regarding its recent pesticide Final Rule to grant a one-week extension for a hearing scheduled for today and of related deadlines in a letter to Judge Lewis Liman of the Southern District of New York. The EPA also advised the judge that it consented to an extension of the Temporary Restraining Order against it from January 12 until January 19 to adjust for the extended hearing and filing dates.
The lawsuit began with two complaints filed in mid-December, which have now been consolidated. One was filed by five states and the other by farmworker organizations, each alleged that the new rule, entitled “Pesticides—Agricultural Worker Protection Standard: Revision of the Application Exclusion Zone Requirements” would be harmful to farmworkers by allowing more exposure to pesticides.
In its letter, the EPA explained that on Wednesday, shortly before it planned to file its brief, it was notified of “an error in certain information underlying the rule at issue.” According to the defendant, the rule stated that all trainings approved by the EPA since 2018 have included guidance on applying pesticides “near establishment borders” and handling pesticides in a way that prevents contact with the substances during application. The EPA said that it learned on Wednesday that some trainings were approved which did not have this information, contradicting the Final Rule.
The EPA explained that it is in the process of determining if this error has an effect on the rule involved in the lawsuit, and explained that it would like time for this process, leading it to seek the extension.
The letter also explained that the government has conferred with the plaintiffs’ counsel, including the states’ departments of justice and attorneys with Farmworker Justice and EarthJustice, and that there will likely be a supplement to the record which could also benefit from the additional week.
The letter quoted the plaintiffs saying they consent to the extension of the Temporary Restraining Order and the hearing, but that the extension of the Order should be for 14 days rather than one week. EarthJustice also submitted its own letter to Judge Liman in the evening on Thursday in response to the EPA’s request. The letter said that the plaintiffs would like the opportunity to respond to any of the additional information from the EPA, and that the rescheduled hearing should allow time for this.
The plaintiffs said the information that some trainings have not included the pesticide guidance “only serves to weaken EPA’s position that the Final Rule is based on a reasoned explanation or rational basis, and strengthens Plaintiffs’ showings of irreparable harm and likelihood of success on the merits.”
