The 9th Circuit Court of Appeals has given the Environmental Protection Agency 60 days to revoke all food tolerances and cancel all registrations for the widely used insecticide chlorpyrifos.

Former EPA Administrator Scott Pruitt's decision last year to allow continued use of chlorpyrifos (trade name: Lorsban) violates the Federal Food, Drug & Cosmetic Act (FFDCA) and the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the San Francisco-based court said.

EPA had proposed to ban food tolerances for the chemical, but Pruitt issued an order in March 2017, which "declined to revoke chlorpyrifos tolerances but did not make a finding of reasonable certainty that the tolerances were safe," as required by FFDCA, the court said. "Instead, (EPA) found 'significant uncertainty' as to the health effects of chlorpyrifos, which is at odds with a finding of 'reasonable certainty' of safety" under the FFDCA.

"Chlorpyrifos similarly does not meet the statutory requirement for registration under FIFRA, which incorporates the FFDCA’s safety standard," the court said.

Farmworker groups, environmentalists and public health advocates had petitioned and then sued EPA to ban the insecticide, which is used on a wide variety of crops, including corn, soybeans, fruit and nut trees, broccoli and many others.

“The court ended EPA's shameful actions that have exposed children and farmworkers to this poison for decades,” Earthjustice attorney Marisa Ordonia said. “Finally, our fields, fruits, and vegetables will be chlorpyrifos-free.” Earthjustice is representing the plaintiffs in the lawsuit

"Chlorpyrifos is a dangerous nerve agent pesticide that can damage the developing brains of children," the plaintiff groups said in a news release. "Prenatal and early life exposure to chlorpyrifos is linked to lower birth weight and neurodevelopmental harms, including reduced IQ, loss of working memory, attention disorders, and delayed motor development. It is also acutely toxic to farmworkers – routinely sickening workers and sending them to the hospital."

The court said at the outset of its opinion that for almost two decades, EPA "has documented the likely adverse effects of foods containing the residue of the pesticide chlorpyrifos on the physical and mental development of American infants and children, often lasting into adulthood."

In a statement issued today, chlorpyrifos registrant Corteva Agriscience said, "Chlorpyrifos is a critical pest management tool used by growers around the world to manage a large number of pests, and regulatory bodies in 79 countries have looked at the science, carefully evaluated the product and its significant benefits and continued to approve its use. We note that this was a split decision of the panel and we agree with the dissenting judge’s opinion. We expect that all appellate options to challenge the majority’s decision will be considered.  We will continue to support the growers who need this important product."

Corteva is the agricultural division of DowDuPont. Dow AgroSciences said in the past that it was "confident that authorized uses of chlorpyrifos products offer wide margins of protection for human health and safety."

As noted by Corteva, the court's opinion was not unanimous. Circuit Judge Ferdinand F. Fernandez dissented, reasoning that the court did not have jurisdiction over the matter. 

The lead plaintiff in the case is the League of United Latin American Citizens. Other plaintiffs include the Pesticide Action Network, Natural Resources Defense Council and Farmworker Justice. The states of New York, Maryland, Vermont, Massachusetts, California, Washington, Hawaii, and the District of Columbia intervened on the side of the plaintiffs.

Dow AgroSciences participated in the litigation as a friend of the court on the side of the government.

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