NGO-driven EPA regulations based on bad science need reform

With all its warts, the Trump administration has hit the ground running on pulling back regulatory overreach. The president has issued a pair of critical, wide-ranging executive orders — one that requires federal agencies to revoke two regulations for every new rule they want to issue, and another that requires the cost of any additional regulations to be completely offset by undoing existing rules.

The new head of the Environmental Protection Agency (EPA), Scott Pruitt, made it clear in an interview with the Wall Street Journal that his agency will be run differently than in years past: “This past administration didn’t bother with statutes. . . They displaced Congress, disregarded the law, and in general said they would act in their own way. That now ends,” he said.

{mosads}As an example,  Pruitt promised to end the pernicious practice known as “sue and settle” that occurs when a federal agency invites a lawsuit from an ideologically sympathetic activist group — sometimes one to which it has given grants — and then quickly settles on terms that both the agency and activists like.

This occurs even if it exceeds the agency’s statutory mandate. Thus, sue and settle is a strategy that circumvents both congressional intent and the rulemaking process. The EPA has used it repeatedly. There’s another category of regulatory reform that needs attention — regulations in the works driven by non-governmental organizations (NGOs) that are not based on science. 

A case in point is the EPA’s proposed ban of chlorpyrifos, a popular insecticide that farmers have been using for decades. An EPA ban would fly in the face of the judgements of more than 100 countries — including Canada, the U.K., Japan and Australia — that have reviewed the science and allowed farmers to use the product on more than 50 different crops, including corn, citrus, grapes, soybeans and wheat.

So why is the EPA an outlier? It’s partly a case of regulation by litigation. The Natural Resources Defense Council (NRDC), the Pesticide Action Network North America (PANNA) and other anti-pesticide groups have waged war on chlorpyrifos for 20 years. Finally, they persuaded the notoriously NGO-friendly, San Francisco-based U.S. Court of Appeals for the Ninth Circuit to order EPA to move forward on consideration of a ban.

Because there is a court order, the Trump regulatory mandates don’t apply, and the EPA has been directed to act by March 31. The EPA’s justification is based mainly on a study that has been discredited by a Scientific Advisory Panel of independent experts that the EPA itself convened, which urged the agency not to use the study.

The U.S Department of Agriculture also weighed in against the use of that study: “USDA has both grave concerns about the EPA process…and severe doubts about the validity of the scientific conclusions underpinning EPA’s latest chlorpyrifos risk assessment. Even though use of the Columbia Center for Children’s Environmental Health (CCCEH) study to derive a point of departure was criticized by the [EPA] FIFRA Scientific Advisory Panel, EPA continues to rely on this study. In light of these developments, USDA calls on EPA to deny the NRDC/PANNA petition to revoke chlorpyrifos tolerances.” 

The possibility of a ban is a significant concern not just for the United States, but also in some of the 100-plus countries where it is in widespread use. According to a Bloomberg BNA story, a ban could trigger a trade war. Officials from Brazil, Israel, New Zealand, Australia and other countries have filed comments with EPA urging them to follow international standards.

A representative of the Brazilian orange trade association wrote to the EPA: “Chlorpyrifos is an important insecticide choice for our growers, not only because of the rotation practices, but also because of the pest controlling properties this ingredient presents. . . If the substance becomes restricted, it will cause high production losses for the entire citrus chain.” 

The Trump administration should block this unwarranted ban and thereby send a message to all the entrenched regulators in Washington that the days of policies based on NGO-driven, bad science are over. 

Henry I. Miller is a physician and molecular biologist. He is the Robert Wesson Fellow in Scientific Philosophy and Public Policy at Stanford University’s Hoover Institution. Miller was the founding director of the FDA’s Office of Biotechnology.

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