Loyola University Chicago School of Law, JD 2019
The battle over pesticide use has long plagued the agricultural sector. The legal challenges to the use of chlorpyrifos has created a debate about how to protect our agricultural system and the harm caused by these dangerous chemicals. A lawsuit was filed based on the EPA’s failure to follow advice of their own scientists. The battle over the use of certain pesticides, and the shifting focus of the EPA has created concerns over the ethical standards of officials in key positions.
Legal Battle Over Use
In 2000, Dow Chemical entered an agreement with the EPA to remove chlorpyrifos from store shelves and stopping selling it for use at home, but the use in large scale farming has not stopped. The Natural Resources Defense Council filed a petition with the EPA to ban the chemical, and got a court order in that required the EPA to completely ban use by March 2017. While the EPA proposed a ban in 2015, the ban was never finalized.
When the EPA failed to produce a ban, environmental groups filed suit alleging violations of the Federal Food, Drug, and Cosmetic Act (FFDCA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The court relied on the evidence that the EPA knew of the extreme likelihood of contamination and effects on children as well as the continued EPA questioning of the use as reasons to enforce the court order requiring a ban. FFDCA requires safety standards to protect especially young children from exposure ensuring that they are reasonably safe for infants and children.
Most recently, the EPA has filed for rehearing in the 9th Circuit, arguing that the Supreme Court has ruled that the court cannot demand specific action, but rather must remand the case to the agency. The EPA also argues that at a minimum the order should be modified to limit its application to food-use. Further, the EPA demanded more time to complete the science surrounding the chemical, with studies continuing until 2022. The U.S. Department of Agriculture supports the EPA stating that by allowing the farmers to use the chemicals allows consumers to have a full range of domestic and imported produce.
California has been in the center of litigation surrounding the use of chlorpyrifos. The state Department of Pesticide Regulation estimated that 640,709 acres of crops in California used the pesticide. On the state level, California has listed the chemical as a toxic air contaminant, based on the harm caused by its drifting in use. Hawaii went farther and called for a complete ban on all uses beginning in 2019. This indicates that even if the EPA fails to produce a final rule, key states will take action against its use, and other state representatives have encouraged state action.
Pros and Cons of Chlorpyrifos
Studies have shown that chlorpyrifos can cause serious harm to children, but farmers and support researchers argue that the pesticides are necessary to control the harm that can be done by invasive pests. Safety assessments have shown harm to farm workers, children raised near farms, and consumers of these products. Many scientists and clinicians agree with a ban due to the harms the neurotoxic pesticide causes. These studies have been repeated and affirmed over and over through the years.
Children are particularly susceptible to harm. Studies of children who grew up near the farms showed that pregnant woman who showed signs of ingesting the toxins were more likely to have children with diminished mental capacities.
Other countries have almost completely banned the use of these neurotoxins not only because of the harms to humans but also their harms to helpful insects, such as honeybees. While they did not institute a complete ban, the EU placed restrictions on the open use of the chemicals to prevent their spread. The UK environment secretary recognized the decline in pollinators and stated that “[a] deteriorating environment is ultimately bad economic news as well.”
Farmers who use the chemical argue that it may be the last resort to ridding crops of certain large infestations. One specific industry facing trouble with a ban on the horizon is the citrus industry. Citrus farmers use the pesticide to battle katydids and other invasive species that spread disease. Some research has shown that sometimes the only solution are organophosphates like chlorpyrifos. Farmers argue that the use is necessary to prevent the total decline of the industry.
Ethical Concerns in Shifting Perspectives
Since the election of Mr. Trump, the EPA has shown a drastic change in its approach to neurotoxins such as chlorpyrifos. With the change of the administration, many EPA officials were replaced with people from the chemical industry. This placed chemical industry leaders in charge of determining whether their chemicals should be banned based on harm caused.
Dr. Nancy Beck, recently appointed to a top deputy position in the EPA’s toxic chemical unit, previously challenged the conditions under which the EPA banned other chemicals, stating that the evidence of harm is minimal when the study is repeated by the same people. Officials who have retired from the agency state that these appointments show that the administration is “captured by the industry.” Dr. Beck further was granted a special status that meant she was neither subjected to the completive hiring process nor identified as a political appointment; this designation exempts her from certain ethical obligations such as restrictions on lobbying prior and during service.
Further, Dr. Beck’s involvement in the last-minute changes to the final rule indicate the control that industry can have over pesticides. The involvement of the industry in the creation of regulations banning pesticides creates a situation that puts the “reasonable certainty” standard in FFDCA at risk of degradation by diluting the current meaning. The hesitancy to ban a chemical such as chlorpyrifos with the proven risks indicates a trend towards prioritizing business over the people.