Trump admin appeals ruling ordering EPA to ban pesticide

The Trump administration is appealing a federal court ruling ordering the Environmental Protection Agency (EPA) to ban the pesticide chlorpyrifos.

Justice Department attorneys said that the San Francisco-based Court of Appeals for the Ninth Circuit violated both Supreme Court precedent and the underlying law when it ruled that former EPA head Scott Pruitt improperly rejected a petition in 2017 to ban a pesticide that has been linked to developmental and neurological disorders.

The administration is asking the full 22-judge court to rehear the case and overturn the ruling that came from a three-judge panel.

{mosads}The August ruling was a major victory for environmentalists and food safety advocates, who have been pushing for years for the EPA to crack down on chlorpyrifos. The Obama administration proposed banning use of it on food products, but Pruitt reversed course.

While it was one of a growing list of environmental policy court losses for the Trump administration, the Ninth Circuit’s decision was nonetheless aggressive in ordering EPA to completely ban the substance.

Instead of ordering the EPA to ban chlorpyrifos, the court should have overturned the EPA’s decision and sent it back for reconsideration, attorneys said in their Monday filing.

Further, under the Federal Insecticide, Fungicide, and Rodenticide Act, the court’s finding that there is no safe level of exposure to chlorpyrifos via food should not have necessitated that the EPA ban the substance, attorneys said.

“The important thing here is that courts are not supposed to operate this way,” EPA spokesman Michael Abboud said in a statement.

“This opinion nullifies the FIFRA process, violating a congressionally mandated statute. EPA takes science and health issues very seriously, but we must work within the legal process established by Congress.”

The ruling “conflicts with Supreme Court precedent holding that where an agency’s order is not sustainable on the record, a court should vacate the underlying decision and remand for further consideration by the agency, rather than directing specific action.”

Further, under the Federal Insecticide, Fungicide, and Rodenticide Act, the court’s finding that there is no safe level of exposure to chlorpyrifos via food should not have necessitated that the EPA ban the substance, attorneys said.

Attorneys also argued that the Ninth Circuit did not have the authority to rule in the case, and that it should have gone to a lower district court first.

Dozens of agriculture groups and companies sent letters to the EPA asking it to appeal, saying a chlorpyrifos ban would be detrimental to growing crops including cotton, soybeans and sugarbeets. 

If the Ninth Circuit either rejects the Monday request for a full-court rehearing — known as “en banc” — or the full court agrees with the previous ruling, the Trump administration could appeal to the Supreme Court.

—Updated at 7:30 p.m.