WASHINGTON - The Environmental Protection Agency rejected a petition by environmental and public health groups Thursday to ban a widely used pesticide that has been linked to neurological damage in children, even though a federal court said last year there was "no justification" for such a decision.
In a notice to the Federal Register on Thursday, the agency wrote that "critical questions remained regarding the significance of the data" that suggest that chlorpyrifos causes neurological damage in young children. The agency said that the Obama administration's decision to ban the product - used on more than 50 crops, including grapes, broccoli and strawberries - was based on epidemiological studies rather than direct tests on animals, which have historically been used by the EPA to determine a pesticide's safety.
The EPA's decision, which represented a win for industry, drew swift condemnation from groups that have pushed for years to remove the pesticide from the market.
"By allowing chlorpyrifos to stay in our fruits and vegetables, Trump's EPA is breaking the law and neglecting the overwhelming scientific evidence that this pesticide harms children's brains," Patti Goldman, an attorney for the environmental law organization Earthjustice, said in a statement. "It is a tragedy that this administration sides with corporations instead of children's health."
Still, the decision to deny the petition could bring the country closer to final resolution of a decades-long battle over a pesticide used on fruits, vegetables and cereals that Americans eat every day. Alston & Bird partner Kevin Minoli said agency critics can now challenge the EPA's conclusion that the pesticide is safe and noted that judges on the U.S. Court of Appeals for the 9th Circuit have already indicated "they have significant concerns about the safety of chlorpyrifos."
"This is the entry ticket to the actual main event," said Minoli, who served in the EPA's Office of General Counsel under multiple Republican and Democratic administrations. "This is the end of the road."
The Obama administration had proposed in 2015 to revoke all uses of chlorpyrifos after EPA scientists determined that existing evidence did not meet the agency's threshold of a "reasonable certainty of no harm," given current exposure levels in Americans' food supply and drinking water. EPA staff cited studies of families exposed to it in apartment buildings and agricultural communities that found lower birth weight and reduced IQ, among other effects.
But before the ban was finalized, President Donald Trump took office and reversed course.
In March 2017, then-EPA Administrator Scott Pruitt rejected the agency's own analysis, saying the agency would reassess the science underpinning that decision and make a final determination in 2022. That action, welcomed by the pesticide industry and Agriculture Department officials who had questioned the EPA's findings, led to the latest court fight.
Farmers have pressed to keep chlorpyrifos, which has long been banned from indoor use, available for use on crops.
John Chandler, a fourth-generation farmer in Selma, California, grows peaches, plums, almonds, citrus, and grapes for raisins and wine on his property. He said his operation uses chlorpyrifos on rare occasions, like during an outbreak of the vine mealybug on grape crops.
"It's kind of the last resort," Chandler said, adding that his family works to minimize their employees' exposure to the pesticide. "We train our workers very diligently on proper procedures."
The industry welcomed the EPA's decision Thursday, even as manufacturers of the pesticide acknowledged that its approved uses could change over time, as researchers gather more data.Gregg Schmidt, a Corteva spokesman, said the company supports "critical uses of chlorpyrifos" while the EPA continues to review the pesticide and the scientific data around it.
"We are committed to working with the agency as it seeks to make an accurate assessment and, if necessary, reduce potential exposures, while also ensuring that growers for whom chlorpyrifos is a critical tool can continue to use the product safely," Schmidt said in a statement.
Chris Novak, chief executive of the industry group CropLife America, said farmers and public health officials still rely on chlorpyrifos to control a number of "deadly and debilitating" pests, including mosquitoes. He added that the group supports funding to ensure that EPA has adequate resources to test and regulate chlorpyrifos and other pesticides.
The EPA said in a statement Thursday that it plans to expedite a review of chlorpyrifos, "which should be completed well before the 2022 statutory deadline." The agency also acknowledged it was in discussions with makers of the pesticide that "could result in further use limitations."
The Trump administration's decision to keep the pesticide on the market comes as some major states - including California and New York - have taken steps to ban chlorpyrifos outright.
California health officials said in May that their decision came amid growing evidence that the pesticide "causes serious health effects in children and other sensitive populations at lower levels of exposure than previously understood." California Gov. Gavin Newsom, D, proposed $5.7 million to support the transition to "safer, more sustainable alternatives," according to the California Environmental Protection Agency.
California's proposed ban is expected to take six months to two years to take full effect, comes as other states have started taking similar action. Last year, Hawaii became the first state to ban pesticides containing chlorpyrifos, though that will not take effect until 2022. New York lawmakers recently approved legislation to ban the pesticide by Dec. 1, 2021. Oregon, Connecticut and New Jersey also are considering measures to take chlorpyrifos off the market.
Chlorpyrifos has been used for a half century on a wide array of crops and in virtually every corner of the country. But as evidence has grown over time about its potential health risks, the government has scaled back its use.
Beginning in 2000, companies making chlorpyrifos entered into an agreement with the EPA to phase out residential use of the chemical, aside from a handful of exceptions, such as in ant and roach baits sold in child resistant packaging. Two years later, the EPA put in place additional label changes aimed at protecting agricultural workers, as well as fish, wildlife and water sources near where it is sprayed.
But all that stopped short of banning chlorpyrifos in agriculture altogether - an outcome that advocates argue is long overdue.
"Today's decision is shameful. It flies in the face of decades of strong scientific evidence, and the recommendations of the agency's own scientists. This administration is putting children, workers and rural families across the country at continued risk for no good reason, and we will continue to press for a full federal ban of this dangerous chemical," Kristin Schafer, executive director of the advocacy group Pesticide Action Network, said in an email. "This administration has made perfectly clear who they are working for."