Chlorpyrifos Case to Continue en Banc

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The chlorpyrifos debate continues, as the Ninth Circuit Court granted EPA’S request to rehear the case en banc. This means that the Chief Judge and a panel of ten randomly drawn judges will rehear the case in late March. The prior, three-judge panel decision will not be cited as a precedent in any court moving forward. 

The three-judge panel decided the case last August and mandated a ban of chlorpyrifos effective in early October. This ban was then placed on hold. 

The 9thCircuit Court ruled in August that EPA director at the time, Scott Pruitt, improperly rejected the Obama administration’s previously proposed ban. Attorneys for the DOJ and EPA argued that the court should have overturned the EPA’s decision and sent it back for reconsideration. 

Furthermore, attorneys argued that under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the court should not have required EPA to ban chlorpyrifos. 

In the meantime, Hawaii passed legislation banning the use of chlorpyrifos in January 2019, and the California Department of Pesticide Regulation issued temporary guidelines regarding the use of chlorpyrifos in California while they complete a formal process to list it as a toxic air pollutant. 

At issue is the impact of chlorpyrifos on child development and health. Research conducted at Columbia University suggests that chlorpyrifos negatively impacts children and fetuses. However, the research has come into question due to its relatively small sample size (300 children or less), correlational approach (as opposed to causal), and the emergence of research from other labs showing no such association. 

Scads of agricultural groups, including AmericanHort, sent letters to EPA and USDA supporting a request for appeal, citing negative impacts to production. Though use and importance have diminished, environmental horticulture relies on chlorpyrifos as a rotational partner to pyrethroids and neonicotinoids and as an essential product in both the Japanese beetle harmonization plan and to meet imported fire ant quarantine requirements. 

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