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Ag groups sue EPA over chlorpyrifos revocation rule

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Over 20 agricultural groups are bringing a lawsuit against the Environmental Protection Agency, seeking to halt, and ultimately revoke, the ban of chlorpyrifos — an insecticide used by row crop and specialty farmers. 

In a news release, the groups said, “When the government agency entrusted with making science and evidence-based decisions to protect human health ignores the findings of its own scientists, there must be accountability.”

The agricultural stakeholders taking legal action are first seeking an injunction of the rule to prevent what they argue would be the first wave of significant, irreparable damage the chlorpyrifos revocation would cause if it were to take effect on the Feb. 28 implementation date. The groups are ultimately seeking vacatur of the rule where it conflicts with well-established, properly developed science — specifically, the 11 uses found safe.

At the heart of the EPA’s decision to ban chlorpyrifos is a study from 2006, titled Impact of prenatal chlorpyrifos exposure on neurodevelopment in the first 3 years of life among inner-city children, which found a large proportion of mentally delayed children among those who reportedly had high levels of exposure to chlorpyrifos. The American Farm Bureau Federation challenged the veracity of the study since the underlying science was not made available to the organization for review.

Dow, the maker of chlorpyrifos, has repeatedly upheld the safety and value of its product. In one statement, connected to the 2017 debates over the product, Dow said, “Chlorpyrifos is, in fact, one of the most widely used and thoroughly studied pest control products in the world, supported by more than 4,000 studies examining chlorpyrifos in terms of health, safety, and the environment. It is approved not only for use in the U.S., but nearly 100 countries.”

The manufacturer also argued that the EPA has not always applied the agency’s own data standards to reviews of chlorpyrifos and that the product deserves to remain registered.

Brad Doyle, soy farmer from Arkansas and president of the American Soybean Association commented, “EPA’s proposed interim decision back in December 2020 for the re-registration of chlorpyrifos found 11 high-benefit, low-risk crop uses that the agency was confident ‘will not pose potential risks of concern.’ How can they now deny all uses, even when the court gave them options for keeping those found safe?”

Farmers prioritize safe use of pesticides for a multitude of reasons related to safe food production and stewardship. The revocation rule undermines their efforts by removing a critically needed tool.

American Farm Bureau President Zippy Duvall said, “Farmers are highly motivated to use pesticides judiciously as part of their commitment to produce safe, nutritious foods while also being good stewards of the land. Taking away this tool takes us backward by increasing the use of less effective pesticides to compensate and, in some cases, sacrificing crops that supply our food when no other defense exists against certain pests.”

Stakeholder groups have filed formal objections highlighting the significant harms that would result from the rule and have asked for formal hearings and a stay of the rule until these objections can be addressed. EPA’s failure to consider these concerns or rescind the rule would have major consequences for growers and the food, fuel, and fiber they supply across multiple crops. For many growers, chlorpyrifos is the only or one of very few tools to protect crops from certain pests. Losing chlorpyrifos would expose those growers to hundreds of millions of dollars in potential damages.

The revocation rule also requires food holders to provide retroactively-required application documents, which could result in the destruction of millions of dollars of perfectly safe food over a paperwork issue. These requirements come despite EPA’s acknowledgement that, “considering food exposures alone, the agency did not identify risks of concern.” Of additional concern to growers is that EPA is also discontinuing uses when an actual food crop is not present, such as to tree trunks before the fruit has developed, on dormant fields, or to crops subject to further processing in which residues would not be detected.

“It is unfortunate that we are forced to take these drastic steps. However, with the revocation of such an important chemistry in our industry, our growers stand to suffer irreparable harm. Michigan, with almost 5 million sweet and tart cherry trees, grows 70 to 75 percent of the total U.S. production of tart cherries and close to 20 percent of the total production for sweet cherries. Chlorpyrifos is critical to the Michigan cherry industry, as there are no alternative products that effectively control trunk borers,” said Julie Gordon, president of Cherry Marketing Institute.

Last October, more than 80 agricultural groups filed formal objections to EPA’s rule revoking all tolerances of chlorpyrifos. Stakeholders, by law, can object to pesticide tolerance changes or cancellations, and the EPA Administrator must then respond. The groups asked the EPA for evidentiary hearings and to stay implementation of the rule until objections could be formally considered and addressed by the agency. The objections, hearing requests, and stay requests have not been addressed by EPA to date. 

Joining the lawsuit are: Red River Valley Sugarbeet Growers Association; U.S. Beet Sugar Association; American Sugarbeet Growers Association; Southern Minnesota Beet Sugar Cooperative; American Crystal Sugar Company; Minn-Dak Farmers Cooperative; American Farm Bureau Federation; American Soybean Association; Iowa Soybean Association; Minnesota Soybean Growers Association; Missouri Soybean Association; Nebraska Soybean Association; South Dakota Soybean Association; North Dakota Soybean Growers Association; National Association of Wheat Growers; Cherry Marketing Institute; Florida Fruit and Vegetable Association; Georgia Fruit and Vegetable Growers Association;  Gharda Chemicals International Inc.; National Cotton Council of America.

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