ArentFox Schiff Helps Secure Major Federal Appeals Court Victory in EPA Dispute Over Key Agricultural Product

On November 2, 2023, the US Court of Appeals for the Eighth Circuit vacated a 2021 decision by the US Environmental Protection Agency (EPA) that had halted the use on agricultural crops of the pesticide product known as chlorpyrifos.

Chlorpyrifos had been used for many decades to control insects without damaging crops. EPA’s decision followed a ruling by the Ninth Circuit Court of Appeals that required EPA to either halt uses of chlorpyrifos or modify them consistent with science that EPA had developed showing that many of the crop uses of chlorpyrifos are safe. Instead of modifying crop uses consistent with its science, EPA banned all crop uses. In a unanimous decision in Red River Valley Sugarbeet Growers Association, et al. v. EPA, Case No. 22-1422, the Eighth Circuit said EPA’s action was “arbitrary and capricious” and vacated it.

EPA’s Regulation of Pesticides and 2021 Chlorpyrifos Decision

EPA registers pesticides like chlorpyrifos pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act, which allows registration only when the pesticide will perform its intended function without unreasonable adverse effects on the environment. For food use pesticides, EPA also sets tolerances that limit the amount of pesticide residue in or on a food. These tolerances must ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue — that is, they are safe — pursuant to the Federal Food, Drug, and Cosmetic Act and Food Quality Protection Act.

For decades, EPA had determined that the use of chlorpyrifos had met these standards. However, in 2021, in response to a petition from environmental groups, the Ninth Circuit ordered EPA to revoke all chlorpyrifos tolerances or modify them if the agency could state that the tolerances so modified were safe. The Ninth Circuit gave EPA 60 days to complete this task. Despite having its own science, developed a few months before the Ninth Circuit’s decision, demonstrating that several crop uses of chlorpyrifos are safe, EPA revoked all food use tolerances, eliminating the use of chlorpyrifos on crops.

EPA’s decision was challenged by 19 grower groups representing a cross-section of American agriculture and ArentFox Schiff client Gharda Chemicals International, Inc. The ArentFox Schiff team representing Gharda Chemicals was led by Donald McLean, Katie Heilman, Mattie Bowden, and Jack Hitt.

The Eighth Circuit’s Decision

The Eighth Circuit Court said that EPA rushed to meet the Ninth Circuit’s deadline and, in doing so, failed to appropriately consider the agency’s own science showing that there are several uses of chlorpyrifos that meet the statutory safety standard. The court held that EPA’s decision to ignore its own science was “arbitrary and capricious,” in violation of the Administrative Procedure Act. The court vacated EPA’s decision and remanded to the agency for further proceedings.

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