The EPA will get another hearing on a federal court’s 2018 order to ban all chlorpyrifos registrations, as the U.S. Court of Appeals for the Ninth Circuit granted the agency an en banc hearing in an order handed down on Wednesday in San Francisco.
In August 2018, the EPA asked for the hearing that will be before all non-recused judges in the Ninth Circuit on the week of March 25, 2019, in San Francisco.
On Aug. 9, 2018, a three-judge panel on the court ordered EPA to cancel all chlorpyrifos registrations in 60 days. The court ruled the agency was not justified in maintaining the insecticide’s registration “in the face of scientific evidence that its residue on food causes neurodevelopmental damage to children.”
Chlorpyrifos’ registration was set to end on Oct. 9, 2018.
En banc hearings are reserved for cases that are particularly complex. According to the court order, the three judges that issued the 2018 ruling were not part of the vote to allow a rehearing. They are judges Marsha Siegel Berzon, Jay Scott Bybee and Ryan Douglas Nelson.
Chlorpyrifos is the main ingredient in Dow AgroScience’s Lorsban insecticide, which targets pests such as soybean aphids, spider mites and corn rootworm.
Attorneys with the U.S. Department of Justice argued in EPA’s petition that the law requires the court to allow the EPA to reconsider the insecticide’s registration.
The petition argued the court’s revocation of the registration was in conflict with cancellation requirements laid out in the Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA.
The legal pursuit began in 2007 when the Pesticide Action Network North America and the Natural Resources Defense Council petitioned EPA to cancel chlorpyrifos registrations.
The EPA denied a petition filed by environmental groups on March 30, 2017, to ban the pesticide outright. The agency said in a statement at the time that farmers need chlorpyrifos, and an agency that relies on “sound science” when making decisions.
That move was a surprising reversal from the stance of the EPA under the previous administration, which had indicated as recently as fall 2016 that it was prepared to issue a full ban on the pesticide.
The court decided the EPA had been ignoring its own science that showed chlorpyrifos is allegedly a danger to children.
Following the court’s August 2018 decision, an EPA spokesman told DTN the decision was based on data that was not accessible to the agency.
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A Columbia Center for Children’s Environmental Health study has been widely used as support for the ban, despite divergent scientific views among EPA scientific review panels, and former President Barack Obama’s administration’s USDA questioning the study, and its data.
A 2016 EPA scientific advisory panel indicated some members of that panel said they had difficulty assessing the study, because the raw data from the study was not made available.
On July 30, 2018, the California Department of Pesticide Regulation released a scientific assessment that concluded that chlorpyrifos should be listed as a toxic air contaminant in the state based on evidence of its neurological effects and exposure risks.
Agricultural groups have expressed concern over a ban, arguing that doing away with chlorpyrifos could complicate the battle against insects, especially when growers are being encouraged to rotate chemistries to guard against insect resistance.
Todd Neeley can be reached at firstname.lastname@example.org
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