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Agricultural groups sue EPA over agency’s ignoring of science and safety findings in recent regulatory actions.

Jacqui Fatka, Policy editor

February 11, 2022

5 Min Read
farmer spraying pesticides on field
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Ag groups representing thousands of farmers and farmer-owned cooperatives that will be harmed by the Environmental Protection Agency’s decision to revoke all tolerances of chlorpyrifos are taking legal action against the agency by filing a lawsuit over the agency’s ignoring of science in establishing its actions.

The groups are first seeking an injunction of the rule to prevent the first wave of what they claim is “significant, irreparable damage” the chlorpyrifos revocation would cause if it were to take effect on the Feb. 28 implementation date. The groups are ultimately seeking vacatur of the rule where it conflicts with well-established, properly developed science—specifically, the 11 uses found safe.

In August 2021, EPA announced it would stop the use of the pesticide chlorpyrifos on all food. In the final rule, EPA revoked all “tolerances” of the chlorpyrifos in food. Chlorpyrifos is an organophosphate insecticide used for a large variety of agricultural uses, including soybeans, fruit and nut trees, broccoli, cauliflower and other row crops, as well as non-food uses. EPA claims it has been found to inhibit an enzyme, which leads to neurotoxicity, and has also been associated with potential neurological effects in children.

Following the rule, last October, more than 80 agricultural groups filed formal objections to EPA’s ban on chlorpyrifos, which has more than 50 registered agricultural uses on numerous crops, many of which are high-benefit uses to protect against economically significant pests. The objection explains that the groups object to the tolerance revocation of all uses, as EPA’s own risk assessments show some uses meet the legal standard under the Federal Food, Drug, and Cosmetics Act.

In their objection, the groups asked EPA for evidentiary hearings and to stay implementation of the rule until objections could be formally considered and addressed by the agency. The objections, hearing requests, and stay requests have not been addressed by EPA to date.

EPA’s rule revokes tolerances on crop uses where many growers have few or no pest management alternatives, leaving them exposed to hundreds of millions of dollars in irreparable crop damage. The revocation rule would also require food holders to provide retroactively-required application documents, which could result in the destruction of millions of dollars of safe food over a paperwork issue.

Brad Doyle, soy farmer from Arkansas and president of the American Soybean Association, explains, “EPA’s proposed interim decision back in December 2020 for the re-registration of chlorpyrifos found 11 high-benefit, low-risk crop uses that the agency was confident ‘will not pose potential risks of concern.’ How can they now deny all uses, even when the court gave them options for keeping those found safe?”

High benefit uses identified by EPA include alfalfa, apples, asparagus, cherries, citrus, cotton, peaches, strawberries, soybeans, sugarbeets, and wheat across various states.

EPA’s failure to consider these concerns or rescind the rule would have major consequences for growers and the food, fuel, and fiber they supply across multiple crops, the groups state. For many growers, chlorpyrifos is the only or one of very few tools to protect crops from certain pests. Losing chlorpyrifos would expose those growers to hundreds of millions—to billions—of dollars in potential damages.

 “It is unfortunate that we are forced to take these drastic steps. However, with the revocation of such an important chemistry in our industry, our growers stand to suffer irreparable harm. Michigan, with almost 5 million sweet and tart cherry trees, grows 70-75% of the total U.S. production of tart cherries and close to 20% of the total production for sweet cherries. Chlorpyrifos is critical to the Michigan cherry industry, as there are no alternative products that effectively control trunk borers,” says Julie Gordon, president of Cherry Marketing Institute.

Farmers' goal is to safely use pesticides

Farmers prioritize the safe use of pesticides for a multitude of reasons related to safe food production and stewardship. The revocation rule undermines their efforts by removing a critically needed tool.

“Farmers are highly motivated to use pesticides judiciously as part of their commitment to produce safe, nutritious foods while also being good stewards of the land,” American Farm Bureau President Zippy Duvall says. “Taking away this tool takes us backward by increasing the use of less effective pesticides to compensate and, in some cases, sacrificing crops that supply our food when no other defense exists against certain pests.”

FDA guidance on food use of chlorpyrifos

The revocation rule also requires food holders to provide retroactively-required application documents, which could result in the destruction of millions of dollars of perfectly safe food over a paperwork issue. These requirements come despite EPA’s acknowledgment that, “considering food exposures alone, the agency did not identify risks of concern.”

On Feb. 9, the Food and Drug Administration released a guidance document to help food producers and processors who handle foods that may contain residues of the pesticide chemical chlorpyrifos. Under the channels of trade provision, after the EPA tolerances expire, a food that contains chlorpyrifos residues is not deemed unsafe solely based on the presence of the residue as long as the chlorpyrifos was applied lawfully and before the tolerance expired, and the residue does not exceed the level permitted by the tolerance that was in place at the time of the application.

ASA Spokeswoman Wendy Brannen says ASA is still reviewing the guidance to understand its impact. “However, we are very concerned FDA states products containing residues will be adulterated after the rule takes effect even if FDA will not be taking immediate enforcement action. EPA’s revocation rule continues to present an enormous reputational and business harm to our members,” she adds.

Of additional concern to growers is that EPA is also discontinuing uses when an actual food crop is not present, such as to tree trunks before the fruit has developed, on dormant fields, or to crops subject to further processing in which residues would not be detected.

Joining the lawsuit are: Red River Valley Sugarbeet Growers Association; U.S. Beet Sugar Association; American Sugarbeet Growers Association; Southern Minnesota Beet Sugar Cooperative; American Crystal Sugar Company; Minn-Dak Farmers Cooperative; American Farm Bureau Federation; American Soybean Association; Iowa Soybean Association; Minnesota Soybean Growers Association; Missouri Soybean Association; Nebraska Soybean Association; South Dakota Soybean Association; North Dakota Soybean Growers Association; National Association of Wheat Growers; Cherry Marketing Institute; Florida Fruit and Vegetable Association; Georgia Fruit and Vegetable Growers Association; Gharda Chemicals International, Inc.; and the National Cotton Council of America.

About the Author(s)

Jacqui Fatka

Policy editor, Farm Futures

Jacqui Fatka grew up on a diversified livestock and grain farm in southwest Iowa and graduated from Iowa State University with a bachelor’s degree in journalism and mass communications, with a minor in agriculture education, in 2003. She’s been writing for agricultural audiences ever since. In college, she interned with Wallaces Farmer and cultivated her love of ag policy during an internship with the Iowa Pork Producers Association, working in Sen. Chuck Grassley’s Capitol Hill press office. In 2003, she started full time for Farm Progress companies’ state and regional publications as the e-content editor, and became Farm Futures’ policy editor in 2004. A few years later, she began covering grain and biofuels markets for the weekly newspaper Feedstuffs. As the current policy editor for Farm Progress, she covers the ongoing developments in ag policy, trade, regulations and court rulings. Fatka also serves as the interim executive secretary-treasurer for the North American Agricultural Journalists. She lives on a small acreage in central Ohio with her husband and three children.

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