Chlorpyrifos and state v. national action in food policy

by Diana Winters

A reversal by the Trump administration on proposed restrictions on the use of a commonly used pesticide highlights how state governments may be instrumental in the development of progressive food policy.

The Environmental Protection Agency (EPA) began a reassessment of all organophosphate pesticides in 1996, pursuant to the Food Quality Protection Act (FQPA). The FQPA amended the Food, Drug, and Cosmetic Act (FDCA) and the Federal Fungicide, Insecticide, and Rodenticide Act (FIFRA), under which the EPA regulates pesticides, and required the agency to assess approved pesticides under a stricter standard than it had previously. In 2000, after this reassessment, the EPA signed an agreement with six manufacturers of chlorpyrifos sharply limiting the pesticide’s production for home and garden use, and curtailing its use on certain agricultural products.

After the EPA completed its reassessment process in 2006 and reaffirmed its approval for the remaining uses of chlorpyrifos, the Natural Resources Defense Council (NRDC) and Pesticide Action Network North America (PANNA), filed an administrative petition, asking the agency to ban all uses of the pesticide. In this petition, the groups argued that the EPA had inappropriately reaffirmed the pesticide’s approval despite significant evidence showing that chlorpyrifos was dangerous to humans, especially to children.

The EPA delayed issuing a response to the NRDC/PANNA petition for years. PANNA filed suit in 2010 against the agency, demanding a response, but settled the suit based on a promise by EPA that the agency would issue a final decision by 2011. When it did not, PANNA filed for a writ of mandamus in the Ninth Circuit, which the court denied after the EPA provided a timeline for response. When the EPA again missed its deadline in 2014, PANNA renewed its petition for mandamus. The Ninth Circuit granted this petition, ordering the EPA to respond by October 2015.

In October 2015, the agency proposed to revoke all approvals for chlorpyrifos based on what it saw as unacceptable risk to human health, and supported this decision in November 2016 with an updated human health risk assessment. The agency set March 2017 as a deadline for its final decision on the 2015 proposal.

In March 2017, however, the EPA rejected NRDC and PANNA’s petition on the basis that it needed more time to assess the potential health consequences of the pesticide. The agency stated:

despite several years of study, the science addressing neurodevelopmental effects remains unresolved and that further evaluation of the science during the remaining time for completion of registration review is warranted to achieve greater certainty as to whether the potential exists for adverse neurodevelopmental effects to occur from current human exposures to chlorpyrifos.

In August 2017, the New York Times reported that in the weeks before the agency rejected the petition, Scott Pruitt, appointed head of the EPA by President Trump, had assured industry executives who had been advocating for the continued EPA approval of chlorpyrifos, that it is “a new day, and a new future,” and that he would work with the industry.

Soon after the agency denied the petition, NRDC and PANNA filed for further relief from the Ninth Circuit, arguing that the agency’s denial was inadequate because it was not based on new scientific evidence. Several states including California and New York sought to join the suit in July, but shortly thereafter, the court denied this petition, explaining that by issuing a final decision the EPA had fulfilled the court’s earlier mandate, and the groups now needed to pursue administrative relief before returning to court.

In response to the EPA’s decision, California, which produces the majority of the nation’s produce, has moved to further regulate and restrict the use of chlorpyrifos, and to add the chemical to the list of human health hazards that the state maintains under Proposition 65.

While not ameliorating it completely, California’s action to regulate chlorpyrifos will reduce the impact of the Trump administration’s refusal to move forward with the previously proposed restrictions on this chemical. We see the possibility of meaningful change in the food systems sphere—here through the restriction of a pesticide harmful to producers and consumers—enacted through state, not federal action. In regards to food policy, the state, local, and private spheres will be the arenas to watch in the near future as they work to react to the Trump administration’s anti-regulatory stance, industry focus, and inattention to some of the progressive food policy positions taken by the prior federal administration.

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