Former EPA Administrator Scott Pruitt with Nebraska Governor Pete Ricketts

Last week, the Environmental Protection Agency announced it would ban the use of the pesticide chlorpyrifos.  

The decision came on the heels of yet another order by the 9th Circuit Court of Appeals ordering the EPA to ban the chemical for agricultural use.

Despite the chemical being banned for residential use in 2002, farm worker and environmental activists had to undergo a 14-year legal and administrative campaign to ban the substance.

I wrote a post about the then 11 year campaign to ban chlorpyrifos back in August 2018. The legal and political analysis still holds up in my view. 

In a victory for farm workers, last Thursday the Ninth Circuit Court of Appeals ordered the Environmental Protection Agency (EPA)  to completely ban the use of the pesticide chlorpyrifos within 60 days.

While most comment on the decision seemed to criticize former EPA Administrator Scott Pruitt, who no doubt deserves the criticsm, the Ninth Circuit probably would not have ruled the way it did if the EPA under the Obama administration had not dithered in addressing the risks of chlorpyrifos.

What is chlorpyrifos and why is it dangerous?

Chlorpyrifos is a pesticide that is in the same chemical class as sarin gas. Chlorpyrifos can be toxic or even fatal for farmworkers exposed to it and studies show can contribute to genetic defects to children who are exposed to the chemical.  Unlike the popular chemical Round Up, that a jury recently found to have caused cancer for a California man, chlorpyrifos was banned for residential use by the EPA in 2002. However, the EPA still tolerates the chemical for agricultural use, wherein this court case began in 2007.

Background of the court case

In 2007, advocates for farmworkers and others filed a petition challenging the EPA’s tolerance for the use of chlorpyrifos in agriculture. In order to continue tolerating use of the chemical, the EPA would have to show no risk from the use of chemical. A 2008 EPA study showed the EPA couldn’t meet that burden. Another study in 2011 lead to the same conclusion.

Despite the findings of EPA scientists about the risks of chlorpyrifos in agricultural use the EPA took no action. Advocates for banning the chemical filed what amounted to a motion to compel against the EPA in 2014 which finally lead to a proposed rule in late 2015. Advocates filed another motion to implement the ban that the EPA fought in court.

Just when the EPA was ready to implement the rule, the Trump administration came in, under Scott Pruitt and denied the petition to ban chlorpyrifos. Farm worker advocates along with some state attorney generals filed an appeal in court The EPA, making no attempt to argue the merits of the claim, argued that the petitioners hadn’t “exhausted administrative remedies” or followed the proper procedure before litigating the case.

Federal District Judge Jed Rakoff, who was essentially filling in as an appellate judge in the Ninth Circuit, wisely rejected  the EPA’s argument.  He pointed out that allowing the EPA to argue the petitioners had not exhausted administrative agencies would just encourage the EPA to drag out rulings over 10 years and the course of three Presidential administrations.

A dissenting opinion cited to a Second Circuit Court of Appeals that held otherwise, which means the legal issue over how the EPA handles petitions to ban chemicals could be decided by the Supreme Court in the near future.

Political commentary

Reporting by Mike Elk of Payday Report raised concerns during the Obama administration about how the chemical industry was weakening and delaying EPA rule making on chemicals and workplace safety.  The opinion by Judge Rakoff describes how the Obama administration lollygagged in addressing the risks of chlorpyrifos despite two scientific findings by the agency about the danger of the chemical. There is a disturbing irony in the Obama administrations failure to protect farmworkers from chlorpyrifos. Obama’s slogan during his 2008 campaign “Yes We Can” was a translation of the phrase “Si Se Puede” used by farm worker union organizer Cesar Chavez.  Obama said early in his administration that “Elections have consequences.” One consequence of his administration was that a dangerous chemical known to be harmful to farmworkers and their families remained in use through the eight years of his administration.

As mentioned earlier, a state court jury in California found that the herbicide Round Up caused cancer for a California man and entered a $289 million dollar judgment against Round Up manufacturer, Monsanto. In contrast to the plodding, ineffective and lobbyist-driven administrative process that went on for for over a decade without resolution over chlorpyrifos, a citizen was able to get justice against a major corporation from a jury in state court. The contrast between the ongoing  chlorpyrifos debacle and the verdict in the Round Up case should re-enforce the importance of the Seventh Amendment right to trial by jury.