One Insecticide with Two Court Decisions and Other Legal News
Chlorpyrifos Back in the Game
The Eighth Circuit Court of Appeals recently vacated the Environmental Protection Agency’s revocation of all residue tolerances for the insecticide chlorpyrifos which effectively banned the product. The ruling has been welcomed by numerous ag interests since chlorpyrifos has long been one of the primary tools for controlling insect pests in crop production.
The EPA’s ban on chlorpyrifos stems from litigation going back to at least 2012 when several environmental and other interest groups petitioned the Agency to revoke residue tolerances for the insecticide. Over the course of 14 years of evaluations by the EPA and several trips through the courts, in 2021 the Ninth Circuit Court of Appeals finally told the Agency to either establish safe tolerances for chlorpyrifos or ban it altogether. The Ninth Circuit gave the EPA 60 days to make its decision. Thus, EPA went with the total ban.
Rather than ending the story, the EPA’s ban fired up several Ag interest groups who brought suit to challenge the ban, arguing that chlorpyrifos is a critical tool in agriculture and the insecticide can be used safely in various crops for high-benefit agricultural uses. The Eighth Circuit agreed, and told the EPA they acted too fast and their decision for a total ban was arbitrary and capricious. In particular, the Eighth Circuit pointed out that the Agency’s own determination that 11 high-benefit agricultural uses for chlorpyrifos were likely to be safe if all the other uses were revoked. Thus, the Eighth Circuit vacated the EPA’s ban which the Agency enacted to satisfy the Ninth Circuit.
Given the apparent conflict between the rulings of the two federal appellate courts, it opens the door for an appeal to the U.S. Supreme Court for an ultimate resolution.
First Amendment Prohibits California’s Cancer Warning on Glyphosate
The Ninth Circuit Court of Appeals recently upheld a permanent injunction against the State of California prohibiting the State from requiring a cancer warning on glyphosate. After the International Agency for Research on Cancer (IARC) identified glyphosate as “probably carcinogenic” to humans in 2015, California has sought to impose a cancer warning on glyphosate products under its Proposition 65, a ballot initiative enacted in 1986. A number of Ag interest groups challenged the warning requirement in court, arguing that it violated their First Amendment rights to be protected from compelled commercial speech. California argued that the warning fell under an exception to First Amendment protections which allowed compelled speech that is “purely factual and uncontroversial information.” In upholding the injunction, the Ninth Circuit noted that there was “robust debate” in the scientific community regarding the carcinogenicity of glyphosate. The Court concluded that the First Amendment prohibited the State from compelling the cancer warning: “the State is free to advance its own views without using others as a ‘billboard.'” You can read the opinion here.