In 2015, officials in the administration of President Barack Obama proposed an initiative intended to ultimately ban all uses of chlorpyrifos, based on their review of study conclusions arrived at by scientists at the Environmental Protection Agency regarding the pesticide's long-term health hazards. Nearly four years and one presidential transition later, the EPA under President Donald Trump and agency administrator Andrew Wheeler seems to have altered its viewpoint to a considerable degree, evidenced by its decision to rebuke calls by environmental and public health advocacy groups for chlorpyrifos's removal from the market. The Washington Post reported that the agency entered its statement into the Federal Register July 18, 2019.
In the six weeks since that EPA decision, additional developments arose to further complicate the overall situation of chlorpyrifos. Those on all sides of this issue – from participants in the agriculture industry to environmental activists seeking to prove the substance's dangers through chemical analysis – should review these developments carefully, as the matter still does not seem settled in any definitive way.
Background of the chlorpyrifos issue
The manufacture of chlorpyrifos dates back to the early 1960s, when Raymond H. Rigterink invented the pesticide for Dow Chemical. From its introduction to the market in 1965 to the late 1990s, it was available not only for commercial agricultural use, as it is now, but also for homeowners to buy and use casually in their gardens.
The dangers of chlorpyrifos – exposure increases the likelihood of various developmental and neurological disorders, especially in children – were not closely examined until just after the 1996 passage of the Food Quality Protection Act by the U.S. Congress. In 2000, the EPA under President Bill Clinton compelled all of the registrants of the pesticide to agree that it could no longer be available for residential use in any context other than household insect baits with tamper-resistant packaging and products designed to destroy fire-ant mounds. Two years after that, additional restrictions on the substance's use came into effect with the intent of protecting animals and non-commercial plants in areas adjacent to its legal application – not to mention agricultural workers who would be applying it to various crops.
In the contemporary agricultural sector, chlorpyrifos is most commonly used in the U.S. (by measure of total pounds of active ingredient to which it is applied) on corn, the largest American agricultural crop. Farmers also use it on soybeans, row crops like cauliflower, broccoli, cranberries, grapes, strawberries and Brussels sprouts, as well as various fruit and nut trees. Chlorpyrifos can kill virtually any and all insects that it comes into contact with, particularly foliage- and soil-borne bugs including mosquitoes, mealybugs, beetles, grasshoppers, butterflies, moths, stink bugs and aphids. Despite its strength as a pesticide, some farmers view chlorpyrifos more as a fail-safe than something to be used on a regular basis.
"It's kind of the last resort," said Selma, California-based fruit and citrus farmer John Chandler in an interview with the Post. Chandler went on to stress that he and his associates try to limit human exposure to the substance on their farm, stating that they "train [their] workers very diligently on proper procedures."
EPA rationale for refusing to ban chlorpyrifos
As detailed by the Post, the EPA's latest decision regarding this controversial pesticide came in response to a petition filed by Earthjustice and several other environmental and public health nonprofit organizations asking for a ban on the substance. The agency said that data outlining chlorpyrifos's dangers to children was based not on direct animal testing – the typical foundational practice for EPA examinations of pesticide dangers and other, similar matters – but on epidemiological studies.
"As outlined previously, given the importance of this matter and the fact that critical questions remained regarding the significance of the data addressing neurodevelopmental effects, EPA asserted that there is good reason to extend the registration review of chlorpyrifos and therefore to deny the Petition," EPA lawyers wrote in the Federal Register.
The current pitched legal battle surrounding this issue was first set in motion during March 2017, when former EPA administrator Scott Pruitt first threw out the EPA's 2015 plans by rejecting the aforementioned organizations' initial petition to ban chlorpyrifos, saying there had to be more time to review the data. That decision drew immediate ire from environmentalists and praise from industry representatives. (Pruitt, whose ties to the energy and commercial agriculture sectors were widely reported and sometimes criticized, would resign almost a year and a half later amid more than a dozen separate nonpartisan investigations of alleged ethics violations, according to CNN. In succeeding the controversial Cabinet member, current EPA head Wheeler has engendered far fewer criticisms from either side of the political aisle, but largely maintained Pruitt's stance toward matters like pesticides.)
After the U.S. Court of Appeals for the Ninth Circuit ordered a ban on chlorpyrifos within 60 days of Aug. 9, 2018, lawyers for the Justice Department appealed that ruling several weeks later, according to The Hill, at the behest of members of President Donald Trump's administration. The legal dispute went on, and eventually turned into a demand by federal judges that the EPA make a concrete decision about whether or not to ban the pesticide during the review process, which it finally did July 2019. However, attorney Kevin Minoli of Alston & Bird pointed out that there remains a strong possibility of additional lawsuits in federal court protesting the EPA's conclusions, due to the legal precedent established by the Ninth Circuit Court.
Certain states take matters into their own hands
In response to the EPA's choice to allow the continued application of chlorpyrifos in commercial agriculture, a number of state governments took it upon themselves to keep the issue alive by suing the federal agency. According to another report in The Hill, representatives from California, Massachusetts, New York, Vermont, Washington and Maryland – all with fairly strong laws on the books regarding a whole host of environmental issues – banded together to file a lawsuit Aug. 7 arguing that the substance's risks of accelerating brain damage in children were too great for the EPA to cast aside.
"Parents shouldn't have to question whether everyday fruits and vegetables will poison their children," said California Attorney General Xavier Becerra in a statement regarding the suit. "The EPA is egregiously sacrificing our children's health by refusing to make a determination on this dangerous pesticide."
EPA representatives responded with an explanation that it still had chlorpyrifos under its cycle of "registration review," a process that is not scheduled to conclude until 2022, and also said it was speaking with the pesticide's registrant Corteva Agriscience (a Dow spinoff firm) about potentially instituting additional restrictions on farm use. The agency did not directly address the multi-state lawsuit, or the new federal suit filed by Earthjustice with the Ninth Circuit Court.
About a week after the states' lawsuit was filed, California went through with its plans to ban the use of chlorpyrifos in any context within its borders. According to the law firm Bergeson & Campbell PC, the California Department of Pesticide Regulation sent cancelation notices Aug. 14 to all companies listed as registrants of chlorpyrifos in the state. Barring hearings requested by any of the registrants attempting to appeal such cancelations, this makes California just the third U.S. state to outlaw chlorpyrifos after Hawaii and New York.
The global regulatory picture
Generally speaking, other major economies of the world tend to be much more stringent in their enforcement of environmental and public health regulations – including those surrounding pesticide usage – than the U.S. has been during the past few years. This is particularly true of the European Union.
On Aug. 2, the European Food Safety Authority released the tentative results of an assessment of chlorpyrifos that had been ordered by leaders of the European Commission. EFSA officials stated that despite the fact that their study was not yet complete, enough evidence already existed to discourage further use of the pesticide in EU member states. Notable conclusions regarding the substance's neurological effects on the developing brains of children were brought up in the early analysis, as were possible genotoxic effects. The EFSA did acknowledge certain limitations of its research efforts – specifically, the organization couldn't conclusively prove genotoxicity based on various tests with lab rats, and human tests were obviously out of the question – but nonetheless recommended that chlorpyrifos's existing approval for regional use not be renewed.
Things are not quite as simple as an immediate ban on chlorpyrifos use in the EU. According to IEG Policy, the substance would remain legal through the end of 2019, and be phased out when its current approval period ended in January of the following year. This offers some theoretical wiggle room for industry advocates in Europe who hope to keep the pesticide legal, but whether they will actually do so remains to be seen.
