The U.S. Court of Appeals recently concluded two opinions on chlorpyrifos and glyphosate.
Last week, the U.S. Court of Appeals for the Eighth Circuit struck down the Environmental Protection Agency (EPA)’s decision to place a sweeping ban on chlorpyrifos, finding it “arbitrary and capricious.”
Background: In August 2021, the EPA published its Final Rule in response to the Ninth Circuit Court of Appeals’ Order, revoking all tolerances for chlorpyrifos on food crops. The EPA then issued a Notice of Intent to Cancel (NOIC) in 2022 on three chlorpyrifos pesticide products, “because they bear labeling for use on food.”
The Eighth Circuit ruled that, EPA’s decision disregards U.S. Department of Agriculture (USDA)-Pest Management scientists who previously expressed they believed EPA could retain certain chlorpyrifos uses that meet EPA’s safety standards.
The court states:
Facing a tight deadline from the Ninth Circuit, see League of United Latin Am. Citizens v. Regan, 996 F.3d 673, 703 (9th Cir. 2021), the Environmental Protection Agency banned the use of chlorpyrifos on food crops. Its decision was arbitrary and capricious, see 5 U.S.C. § 706(2)(A), so we grant the petitions for review and vacate its order.
Furthermore:
[A] partial ban was a real alternative for the EPA. It could have cancelled some registrations and retained others that satisfied the statutory safety margin…. the EPA should not have reflexively rejected an approach it had the power to adopt, even if it would have required more work.
Note that this decision does not preclude EPA from reinstating the ban in the future, but does create a precedent that it must give consideration as to whether pesticides can be used safely in certain instances, rather than a broad-sweeping ban.
See full decision here.
Additionally, on November 7th, the Ninth Circuit Court of Appeals concluded that enforcing Proposition 65’s carcinogen warning requirement for the herbicide glyphosate is unconstitutional. The court went further to state that the required warning conveyed a message that was “at best, disputed” whether glyphosate is unsafe, and was in violation of the First Amendment.
See full decision here.
