In a significant turn of events, the Eighth Circuit Court of Appeals overturned the U.S. Environmental Protection Agency's (EPA) 2021 decision to ban chlorpyrifos, a widely used pesticide, from being used on food or feed crops. This ruling, dated 2 November 2023, mandates the EPA to reconsider its previous stance.
Historical Context
This issue traces back to April 2021, when the Ninth Circuit Court of Appeals directed the EPA to respond to a 2007 petition by the Pesticide Action Network North America and the Natural Resources Defense Council. The court required the EPA to rule on the usage of chlorpyrifos in food and feed crops within 60 days, bypassing public commentary and additional fact-finding.
Adhering to this mandate, the EPA, in August 2021, enacted a rule revoking all chlorpyrifos tolerances, which dictate the permissible level of pesticide residues on food. The implication of this rule was clear: post-28 February 2022, any food or feed treated with chlorpyrifos would be classified as contaminated, barring its distribution in interstate commerce.
However, this decision faced opposition from a chlorpyrifos registrant and several agricultural groups, leading to the recent Eighth Circuit ruling. The court's decision, which lacks a specific timeline or detailed instructions, remands the case back to the EPA for further evaluation.
EPA's Planned Response
Following the Eighth Circuit's decision, the EPA is set to reinstate chlorpyrifos tolerances upon the court's official mandate. The agency plans to amend the Code of Federal Regulations to reflect this reinstatement.
Furthermore, the EPA is contemplating a new rule to maintain chlorpyrifos tolerances for 11 specific food and feed crops, as outlined in their December 2020 Preliminary Interim Decision. These crops, which accounted for approximately 55% of chlorpyrifos use between 2014 to 2018, include alfalfa, apples, and soybeans, among others.
In parallel, the EPA is negotiating with chlorpyrifos registrants to minimise exposure risks, particularly focusing on these 11 crop uses. This effort will consider public feedback and additional safety measures for workers and vulnerable species.
Ongoing Reviews and Protective Measures
The EPA is concurrently conducting a registration review of chlorpyrifos and implementing safety measures recommended by the National Marine Fisheries Service's 2022 Biological Opinion. These actions aim to safeguard farmworkers, endangered species, and vulnerable populations, including children.
Despite these developments, existing cancellation orders for chlorpyrifos products remain effective until potentially revised by the EPA.
