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After looking at the facts, anyone with half a brain would say the pesticide chlorpyrifos has no place in agriculture. The Environmental Protection Agency first registered the Dow Chemical and DuPont concoction way back in 1965 to kill bugs on a host of crops from corn and soybeans to fruit and nut trees, broccoli, cauliflower, cranberries and Brussels sprouts. And for good measure it was also heavily applied on golf courses. Chlorpyrifos even received EPA approval to kill adult mosquitoes.  

But, as it turned out, chlorpyrifos also carries huge risks which were revealed through the passage of the Food Quality Protection Act of 1996 which required the EPA to determine if the pesticide could be used with “a reasonable certainty of no harm.”

The answer was no, no, no, a thousand times no. But Dow and DuPont didn't want to quit producing its cash cow. So, it reached a voluntary agreement with the EPA that the ag giants would stop marketing chlorpyrifos to homeowners. The deal also prevented farmers from spraying the pesticide on tomatoes and put new spraying restrictions on apples and grapes.

In 2002 the EPA required Dow and DuPont to change the spraying label on chlorpyrifos to address environmental and worker safety issues. 

But all that was small potatoes to a preliminary 2011 health risk assessment finding that chlorpyrifos potentially has negative neurological impacts on young children and babies. The EPA followed up that with stronger warnings in 2014 and 2016.

By that time, the National Resources Defenses Council and Pesticide Action Network North American said enough is enough. The two organizations filed petitions with the Obama administration and the EPA to ban production of chlorpyrifos. Full stop. And the Obama administration agreed.

But the witches’ brew has had more lives than a black cat. Obama left office without getting the job done. And so...you guessed it. In 2017 the Trump EPA reversed the Obama administration's plan to ban chlorpyrifos.

Why? The EPA had the temerity to claim there was not enough evidence linking chlorpyrifos to children's health problems. In short, the EPA lied. 

Ever since opponents have been hammering at the federal courts to get judges to force the EPA to de-register chlorpyrifos. 

In April of 2019, a federal appeals court gave the EPA 90 days to ban chlorpyrifos. That deadline came and went with nothing happening.

And so it went. Opponents to chlorpyrifos would complain to the courts. The courts would send mealy-mouthed demands that did not outright ban chlorpyrifos to the EPA and production continued. A full decade since it was first revealed that children were at risk. Ten years of the courts and the EPA playing Nero.

Well. Finally, this April the US Court of Appeals for the Ninth Circuit, where chlorpyrifos litigation resides, finally showed it has a sliver of backbone. The Ninth Circuit's ruling stitches together judgments on multiple petitions before the EPA that have been pending for several years.

The court vacated 2017 and 2019 EPA orders that essentially prevented the creation of zero chlorpyrifos residue tolerances in food under the Federal Food, Drug, and Cosmetic Act. The courts also gave the EPA 60 days to either establish chlorpyrifos tolerances that are considered safe for workers or ban the pesticide altogether. And the court ordered EPA to do the same for food use under the Federal Insecticide, Fungicide, and Rodenticide Act.

But in what must be considered an ironic twist, the court, which could have taken it upon itself to require the EPA to de-register chlorpyrifos, tried to make the EPA the fall guy:

“In short, the EPA has spent more than a decade assembling a record of chlorpyrifos’s ill effects and has repeatedly determined, based on that record, that it cannot conclude, to the statutorily required standard of reasonable certainty, that the present tolerances are causing no harm. Yet, rather than ban the pesticide or reduce the tolerances to levels that the EPA can find are reasonably certain to cause no harm, the EPA has sought to evade, through one delaying tactic after another, its plain statutory duties...The EPA has had nearly 14 years to publish a legally sufficient response to the 2007 Petition. During that time, the EPA’s egregious delay exposed a generation of American children to unsafe levels of chlorpyrifos. By remanding back to the EPA one last time, rather than compelling the immediate revocation of all chlorpyrifos tolerances, the Court is itself being more than tolerant. But the EPA’s time is now up.”

It's a shame the court did not realize it has been part of the problem. But it can make it right. If the EPA misses the 60-day deadline or begs for an extension, the Ninth Circuit should end chlorpyrifos production in the US immediately. No more dithering.

About Dave Dickey

Dave Dickey

Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for the Midwest Center covers agriculture and related issues including politics, government, environment and labor. His opinions are his own and do not reflect the Midwest Center for Investigative Reporting. Email him at dave.dickey@investigatemidwest.org.