By Anthony Lacey and Carey Gillam
A powerful contingent of agricultural and produce grower groups this week filed the latest salvo in a years-long battle over the pesticide chlorpyrifos, seeking to reverse a new rule banning the chemical from use in U.S. food production.
The move comes after health and environmental advocates successfully forced the Environmental Protection Agency (EPA) last year to announce a ban on the use of chlorpyrifos in farming due to scientific evidence showing the chemical damages children’s brains.
Calling chlorpyrifos a “pest control tool that is critical” for growing crops, the coalition of 19 state and U.S. food and agricultural groups and one chemical company on Tuesday filed their opening brief against the EPA in the 8th U.S. Circuit Court of Appeals. The plaintiffs include the Red River Sugarbeet Growers Association, the U.S. Beet Sugar Association, American Farm Bureau Federation, and other grower groups representing sugar, soybean, wheat, cotton and fruit and vegetable producer organizations.
The groups allege that the EPA action to ban chlorpyrifos was “unlawful” and lacks a scientific basis. The petition states that growers face a “concrete and particularized” and “actual or imminent” injury because of the ban, and notes that the chemical is particularly important to growers of cherries, sugarbeets and soybeans.
The EPA has until July 22 to file a response to the groups’ brief, and declined to comment on the grower group allegations laid out in the brief.
The EPA’s ban is technically a revocation of allowed tolerances for chlorpyrifos residues on food. When farmers use pesticides to grow food, residues of those pesticides often persist in the finished food that people and animals consume. The EPA sets a wide array of tolerances, or legally allowed levels of such residues, for different pesticides on different foods.
In revoking all tolerances for chlorpyrifos, the EPA said it “could not determine that there is a reasonable certainty of no harm from aggregate exposure to chlorpyrifos…” including in food and drinking water.
A long and contentious history
Chlorpyrifos insecticides were introduced by Dow Chemical in 1965 and have been used widely in agricultural settings to grow a variety of crops.. Non-agricultural uses include golf courses, turf, green houses, and utilities.
In the early 2000s, Dow Chemical phased out most residential uses of the chemical in an agreement with the EPA because of scientific research showing risks to human health, particularly children.
In 2012, Columbia University researchers published a study that linked chlorpyrifos exposure to cognitive deficits in children. Additional research has shown that prenatal exposures to chlorpyrifos are associated with lower birth weight, reduced IQ, the loss of working memory, attention disorders, and delayed motor development. The American Academy of Pediatrics has warned that use of chlorpyrifos puts developing fetuses, infants, children and pregnant women at risk.
Lawsuits by environmental groups, including Earthjustice and the Pesticide Action Network, pressured the EPA for years to enact a nationwide ban on chlorpyrifos, and the agency’s own scientists have warned of the potential for harm to children exposed to the chemical through food and water.
Under the Obama administration, a ban was set to be enacted in 2017, but after the Trump administration took office in 2017 the EPA delayed and then later dropped the ban.
The Trump Adminstration’s backing of chlorpyrifos came despite the fact that in December 2017, California’s Office of Environmental Health Hazard Assessment listed chlorpyrifos as known to “cause reproductive toxicity.” Also in 2017, a Food and Drug Administration report listing top pesticide residues in food put chlorpyrifos at the fourth-most prevalent found in foods out of 207 pesticides detected.
In February 2020, after pressure from consumer, medical, scientific groups and in face of growing calls for bans around the world, Corteva AgriScience, a successor corporation to a merger of Dow and DuPont, said it would phase out production of chlorpyrifos. The chemical remained legal for other companies to make and sell, however.
“It took 15 years of EPA and scientific findings and several successful lawsuits, but this year is the first time in decades that chlorpyrifos has not been used on our food crops,” said Earthjustice spokesperson Patti Goldman. “Workers have been spared poisonings and children have been spared learning disabilities. This should not be undone.”
Sudden and swift’
Despite the long history of concerns and controversy over chlorpyrifos, the crop growers allege in their legal challenge that there are no new scientific findings for chlorpyrifos that would explain an outright ban on using the substance on U.S. food.
“EPA’s revocation of chlorpyrifos tolerances was sudden and swift,” said Wendy Brannen, spokesperson for the American Soybean Association (ASA), which is one of the named plaintiffs in the action against EPA. “Without chlorpyrifos, which EPA has indicated can be used safely on soybeans, many growers would have to use greater amounts of other pesticides to control economically devastating pests, thus reducing environmental sustainability.”
Cherry growers face potentially devastating losses if they can’t use chlorpyrifos to kill tree-damaging pests known as trunk borers, said Cherry Marketing Institute director of grower relations Kyle Harris. The group is also plaintiff in the action against the EPA. Chlorpyrifos is the only viable product specialty crop growers have to effectively control the insects, he said.
Both group were among more than 80 agribusiness groups that last year delivered a letter to the EPA urging the agency to reverse its ban. The organizations warned in the letter that produce growers, grocery store chains and others would suffer “hundreds of millions of dollars” in economic damage if the prohibition remains in place.
The EPA said in February of this year, however, that it was denying all objections, hearing requests, and requests to stay the final rule.
The soybean group “supports regulation of pesticides grounded in sound science,” and agrees that pesticides must have “reasonable restrictions to protect human health and the environment,” said the ASA’s Brannen.
“We expect EPA to make decisions that are consistent with the agency’s own scientific findings, which the chlorpyrifos revocation decision was not,” she said.
The group call the ban an “abrupt and unexpected change in position” and said that it runs counter to a scientific human health assessment that found use of chlorpyrifos on eleven high-benefit crops in select regions to be safe,” the brief filed May 24 states.
Chlorpyrifos use ‘loophole’
In contrast to the position of the growers groups, health and environmental advocacy groups have applauded the EPA’s action on chlorpyrifos and say it is long overdue, but does not go far enough.
The EPA’s decision still allows chlorpyrifos to be applied for non-crop uses, such as on golf courses, and on food for export that complies with another country’s pesticide rules.
Hardy Kern, director of government relations for the American Bird Conservancy’s birds and pesticides campaign, said this “loophole” allows products containing chlorpyrifos to still be used in ways that can pose a health risk for people if the chemical contaminates groundwater or is carried through the air during one of the allowed applications.
“If we had no idea about the health and environmental effects of chlorpyrifos it would be one thing, but we know how dangerous it is, and yet we’re letting this product sit on shelves,” he said. “Nobody is going to be eating chlorpyrifos [on food in the U.S.] but people will still be exposed to it through groundwater, spray drift and other ways.”
Kern said the battle over the fate of chlorpyrifos could set an important precedent for any future challenges to other pesticides.
The EPA is continuing to evaluate the non-agricultural uses of chlorpyrifos as part of its ongoing review of the pesticide’s registration. It took comment from March 2 to May 2 on a draft biological opinion (BiOp) assessing chlorpyrifos’ risks to endangered and threatened species, finding it is likely to jeopardize some species and habitats.
“EPA has demonstrated that chlorpyrifos poses a significant threat through agriculture and therefore should extend this protection to recipients of exported agricultural products as well as all Americans who may interact with chlorpyrifos in private applications,” Kern wrote in comments submitted to the EPA in May.
In the meantime, the Food and Drug Administration, which has the authority to enforce the EPA’s tolerances, in February issued guidance stating that food containing chlorpyrifos residues would not be deemed unsafe as long as the pesticide was applied legally before the tolerances expired and the residues do not exceed prior legal tolerances.