Originally published in the January/February 2024 issue of Bench & Bar of Minnesota Environmental Law Update, Minnesota State Bar Association.
In “the latest round in the battle over chlorpyrifos,” the Eighth Circuit recently found the Environmental Protection Agency’s (EPA) ban on chlorpyrifos—a pesticide used in a variety of agricultural production—was arbitrary and capricious in violation of the Administrative Procedures Act. See Red River Valley Sugarbeet Growers Association v. Regan, 85 F.4th 881 (8th Cir. 2023).
Nearly two dozen agricultural groups petitioned the Eighth Circuit to review whether the EPA violated the Administrative Procedure Act when it banned the use of chlorpyrifos for agricultural purposes in 2021. The ban was the result of a decade-long petition by various environmental groups, which the EPA recognized had “had raised ‘risk concerns’ about how chlorpyrifos impacted children, including through drinking water, but it was not sure what to do about it.” Eventually, the environmental groups grew impatient of awaiting the EPA’s decision and petitioned the Ninth Circuit to require the EPA to respond. The Ninth Circuit order the EPA to “revoke all chlorpyrifos tolerances or modify them if it could certify that the tolerances so modified were safe,” within 60 days following the court’s order. In response, the EPA revoked all tolerances, and ended the use of chlorpyrifos in the United States.
In the instant Eighth-Circuit case, agricultural groups petitioned for review of the EPA’s decision ending the use of chlorpyrifos in the United States. They argued that the EPA acted “arbitrarily and capriciously,” in violation of the Administrative Procedures Act when it revoked all tolerances of chlorpyrifos. The EPA, in turn, argued that with the short time frame to act given by the Ninth Circuit, the EPA did not have time to modify tolerances of chlorpyrifos to levels it viewed as safe, and therefore had no choice but to revoke all tolerances for all uses.
In beginning its review, the Eighth Circuit recognized that “any tolerance the EPA ‘establish[es] or leave[s] in effect’ must be ‘safe.’" Said another way, the EPA was tasked with figuring out all the ways chlorpyrifos residue could reach people, sum them together and then add the extra exposure from the tolerance under consideration. The court cited a report where “the EPA had uncovered 11 high-benefit agricultural uses that were likely to be safe if it revoked others.” This demonstrated that the EPA could modify tolerances. Therefore, the revocation order was arbitrary and capricious. The Eighth Circuit remanded back to the EPA and instructed the EPA that “more than just modification is on the table. The agency remains free to exercise its discretion as long as it considers all ‘important aspect[s] of the problem’ and gives a reasoned explanation for whichever option it chooses.”