Farmers will be able to use the pesticide chlorpyrifos on soybeans and other crops again, the US EPA announced last month. The announcement reflects the tug of war the agency has faced following two decisions by separate circuit courts, reported Bloomberg Law.
EPA said it will allow chlorpyrifos to be used following November’s US Court of Appeals for the Eighth Circuit ruling that the agency in 2021 unlawfully revoked its permission to use the insecticide. The 2021 ban of chlorpyrifos’ use on food crops followed an April 2021 Ninth Circuit ruling requiring the EPA, within 60 days, to either ban the pesticide’s use on food crops to protect children or lower the allowable residue that could remain on food (GM April 30, 2021).
The result was a too-rushed decision, the Eighth Circuit’s opinion said. “A short deadline is no excuse for zeroing in on a single solution to the exclusion of others,” the opinion said.
Although EPA will allow all canceled uses to resume, it also will propose a new rule soon to revoke the tolerances – legal pesticide residue levels – for all but 11 uses mentioned by the court, the agency said. The 11 uses include application on crops such as alfalfa, soybeans, citrus, peaches, and tart cherries that rely on chlorpyrifos to kill caterpillars, beetles, moths, and other insects. About 55% of chlorpyrifos was used on those types of crops before the 2021 ban, the EPA said.
Working with pesticide makers, the agency aims to identify additional restrictions so that the 11 high-benefit uses of chlorpyrifos could continue while also protecting farmworkers, other vulnerable groups of people, and vulnerable species, EPA said.
In addition to human health concerns, EPA said it is working with the National Marine Fisheries Service to address problems chlorpyrifos and other pesticides could cause threatened or endangered species – including orca, salmon, and sturgeon – identified in a 2022 Biological Opinion the fisheries service issued.
The American Soybean Association (ASA), among other agricultural groups, was pleased with EPA’s decision, said Kyle Kunkler, Director of Government Affairs for ASA, which was among the groups that petitioned the Eighth Circuit for its review.
EPA’s 2021 food use ban disregarded its own science that had identified the 11 high-priority uses of chlorpyrifos as safe, Kunkler said. The latest decision acknowledges the importance of those uses and EPA’s plan to work with registrants to allow those applications to continue. As one of the primary parties impacted by the 2021 ban, Kunkler said the ASA plans “to take them up on that and engage very thoroughly.”
The Eighth Circuit didn’t disagree with the Ninth, said Noorulanne Jan, an associate attorney with Earthjustice, which represented the environmental groups that petitioned the Ninth Circuit. The Eighth Circuit didn’t eliminate the EPA’s ability to ban food uses. It said EPA needed to use a more robust process to reach its decision, she said.
As EPA makes its decision this time, Jan said it will have to show its work more clearly. “The science shows it’s an unsafe pesticide for children and farmworkers and their families,” she said.
“Children don’t get a do-over on brain development, and acute poisonings have a cumulative effect on the long-term health of farmworkers and their families,” Earthjustice said in a statement. “Pursuing environmental justice means protecting children and farmworker families. EPA should act accordingly.”
States with the highest uses of chlorpyrifos in 2019, the most recent year for which data is available, include Iowa, Nebraska, and Minnesota. High-use crops for chlorpyrifos include corn, soybeans, and orchards including grapes, according to the US Geological Survey.