Grower groups cheered when a federal appeals court ruled last week that EPA’s decision to revoke all food tolerances for chlorpyrifos ran afoul of the law. But they also know that the court ruling does not mean the continued access to the insecticide is guaranteed.
“There is excitement to get the product back,” said Kyle Kunkler, director of government affairs at the American Soybean Association. But, he added, “There are several ways that this could get slowed down or delayed.”
Another industry source following the issue closely told Agri-Pulse he’s cautiously optimistic and that growers wondering about how this will all turn out should “take a deep breath — you’re not going to have an answer now.
“The picture will become clearer between now and the end of the year,” he said.
In its opinion, the 8th U.S. Circuit Court of Appeals in St. Louis said EPA did not have to cancel all food uses, but could have retained 11 uses termed safe for food crops such as alfalfa, soybeans, sugarbeets, cherries in Michigan, and citrus.
Kyle Kunkler, ASAThe court said the agency was considering that “middle-ground approach” in 2020 when environmental and farmworker groups sought review from the 9th Circuit Court of Appeals of EPA’s denial of their petition to ban food uses of the product. The groups have for decades challenged the use of chlorpyrifos, citing evidence of its harmful impact on human health, particularly on the developing brains of infants and children.
In April 2021, the 9th Circuit ordered EPA to either revoke all tolerances for chlorpyrifos or modify them to meet federal food safety law. EPA decided to scrap all the tolerances.
“Given the time constraints, the EPA all but gave up,” the 8th Circuit said. “It lamented, in fact, that it could have done more, particularly after it had found ‘limited combinations of uses in certain geographic areas that could be considered safe.’” (The court added the emphasis.)
The grower groups filed their lawsuit in the 8th Circuit, which heard arguments in the case nearly a year ago.
The appeals court said “a partial ban was a real alternative for the EPA. It could have canceled some registrations and retained others that satisfied the statutory safety margin.”
But making chlorpyrifos available to growers again won’t happen overnight, and might not happen at all. EPA could ask the 8th Circuit to rehear the matter; the court could also formally throw the matter back to EPA to re-evaluate chlorpyrifos, which it could do over the winter.
In addition, EPA still has to consider public comments on its December 2020 proposal, which included new restrictions but no ban.
“It needs to address [the public comments] before it could finalize or modify the 2020 proposal,” said Earthjustice Managing Attorney Patti Goldman, who represents environmental and farmworker groups in the litigation. “Comments from us, academic scientists, and others argued that EPA’s regulatory endpoint used in the 2020 risk and drinking water assessments would not protect children from learning disabilities. And the 9th Circuit accepted those arguments. EPA has a lot to grapple with, which we believe means it cannot find the 11 uses safe.”
Another issue is simply who would sell the product. Corteva, which developed chlorpyrifos in a previous corporate incarnation, exited that part of its business in 2020. Following EPA’s decision to revoke the food tolerances, most companies holding registrations for food uses voluntarily requested cancellation, and EPA published a notice Nov. 6 of its final cancellation and order on some of those requests.
One company, Gharda Chemicals International, however, proposed to retain registrations for the 11 uses with safety at issue.
In a letter to EPA in March 2022, Gharda cited the pending litigation in the 8th Circuit in saying it “is not in a position to voluntarily cancel its registration for the eleven uses at this time,” the company wrote, noting it “stands prepared to engage in a dialogue with EPA and/or the Department of Justice concerning the eleven uses at the appropriate time.”
Ramanathan Seethapathi, Gharda’s vice president of sales and marketing in the U.S., did not respond directly to an Agri-Pulse inquiry on the company's plans for chlorpyrifos.
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Asked whether companies would try to get their registrations back following the 8th Circuit decision, Goldman said she doubted it.
“The writing is on the wall for chlorpyrifos on food, and they would risk selling product that they would need to get back,” she said.
Growers certainly would like to have chlorpyrifos back. A spokesperson for the Cherry Marketing Institute, which represents the tart cherry industry, said “chlorpyrifos is critical for borers, which will kill trees over time by infecting the trunks. So the effect would be higher levels of disease in orchards, leading to premature tree death or shortened orchard life.”
Mark Boetel, an entomologist at North Dakota State University, said based on preliminary data, it appears that there was somewhat more injury from sugarbeet root maggot this season than in recent years.
Also based on an initial review of data, growers appear to have been more watchful of pest pressure this season without chlorpyrifos, employing multiple applications of alternatives, Boetel said.
Those multiple applications led to “much higher costs fighting pests,” said Nate Hultgren, president of the American Sugarbeet Growers Association.
Overall, the sugarbeet crop appears to have come through the 2023 season relatively unscathed. USDA is projecting a 6.6% increase in production nationwide, to 34.7 million tons.
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