Appeals court tells EPA to ban pesticide or decide it’s safe

WASHINGTON — A federal appeals court on Thursday ordered the Environmental Protection Agency to quickly determine whether a pesticide linked to brain damage in children should be banned, saying the agency had delayed acting on the widely used bug-killer chlorpyrifos for nearly 14 years.

In a 2-1 decision, the San Francisco-based 9th U.S. Circuit Court of Appeals ordered the EPA to act on a possible ban within 60 days.

“The EPA has spent more than a decade assembling a record of chlorpyrifos’s ill effects,″ U.S. District Judge Jed S. Rakoff wrote. “Yet, rather than ban the pesticide or reduce the tolerances to levels that the EPA can find are reasonably certain to cause no harm, the EPA has sought to evade, through one delaying tactic after another, its plain statutory duties.″

Rakoff and U.S. Circuit Judge Jacqueline H. Nguyen ordered the EPA to decide within 60 days whether the pesticide is safe, including for infants and children, or ban it.

U.S. Circuit Judge Jay S. Bybee, in dissent, said 60 days was too short, “likely predetermining EPA’s option” and forcing a ban.

“This is a vast overreach, a clear abuse of our discretion,” Bybee wrote.

The decision comes after a yearslong battle over the pesticide, which is widely used on oranges, soybeans, almonds and other crops.

Environmental groups said a ban of chlorpyrifos is long overdue.

“The court got it right: EPA’s time is now up,” said Patti Goldman, managing attorney at Earthjustice, one of the groups that challenged the Trump-era decision.

“EPA must now follow the law, ban chlorpyrifos and protect children and farmworkers from a pesticide we know is linked to numerous developmental harms,” Goldman said in a statement. “It would be unconscionable for EPA to expose children to this pesticide for any longer.”

The ruling — and EPA action expected by the end of June — “will ensure that kids can eat fruits and vegetables free of this neurotoxin,” Sass said.

Scientific studies have shown that chlorpyrifos damages the brains of fetuses and children. California, the largest agricultural state, banned sales of the pesticide as of 2020; New York and a handful of other states also have moved to ban it.

Corteva Inc. the world’s largest manufacturer of the pesticide, said last year it would stop producing the pesticide by the end of 2020.

The Delaware-based company, created after a merger of Dow Chemical and Dupont, said declining sales drove its decision to end production and that officials continued to believe chlorpyrifos was safe.

A spokesman for the company could not immediately be reached on Thursday.

Teresa Romero, president of the United Farm Workers union, called the court ruling a “huge victory.” He said that “the men and women who harvest our food have waited too long for a ban on this pesticide. We are relieved that farmworkers and their families will no longer have to worry about the myriad of ways this pesticide could impact their lives.”

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