By Kari Birdseye, Earthjustice
When a court opinion starts off with a sentence like this, you know it is going to be a good read:
“Although filibustering may be a venerable tradition in the United States Senate, it is frowned upon in administrative agencies tasked with protecting human health.”
The 9th Circuit Court of Appeals recently issued a “writ of mandamus,” a command to a court, agency or person to perform its public or statutory duty. The writ ordered the Environmental Protection Agency (EPA) to act on a 2007 petition to ban chlorpyrifos, a widely used agricultural insecticide whose dangers have been studied for many years.
It’s a big deal for several reasons. First, Earthjustice and our clients Pesticide Action Network North America and the Natural Resources Defense Council have been fighting to get this dangerous pesticide out of agricultural fields for more than a decade. And the judges seem to be losing patience right along with us:
“Pesticide Action Network North America and the Natural Resources Defense Council have been waiting for years for the United States Environmental Protection Agency to respond to their administrative petition requesting a ban on the pesticide chlorpyrifos. Instead, they’ve received a litany of partial status reports, missed deadlines and vague promises of future action.”
Second, while the chemical has already been banned from residential and urban uses, it remains a huge threat to farmworkers, their children and rural families. Every day, month and year the EPA drags its feet or plays footsie with pesticide manufacturers, more people are exposed and poisoned. The court recognizes this danger:
“In view of EPA’s own assessment of the dangers to human health posed by this pesticide, we have little difficulty concluding it should be compelled to act quickly to resolve the administrative petition.”
Third, after years of legal filings and the EPA’s continued inability to meet its own deadlines, the judges are not above using a bit of dry wit:
“As an astute reader might have guessed, EPA’s timeline proved not to be ‘concrete’.”
And EPA’s latest response to the Court garnered this response:
“EPA’s response isn’t a ‘concrete timeline’ for resolving the petition—it’s a roadmap for further delay.”
This time, the EPA had better take the court’s instructions seriously:
“We recognize the scientific complexity inherent in evaluating the safety of pesticides and the competing interests that the agency must juggle. However, EPA’s ambiguous plan to possibly issue a proposed rule nearly nine years after receiving the administrative petition is too little, too late.”
Now, the court is demanding action:
“This delay is egregious and warrants mandamus relief. We order EPA to issue a full and final response to the petition no later than October 31, 2015.”
The EPA has only two real options:
- The agency could reverse course and deny the petition for a ban, going against its previous findings and all the other science that shows how harmful chlorpyrifos is to human health—especially the health of pregnant women and children—and to the environment. This would be a hard choice to defend, since the EPA’s own June 2015 status report to the court announced a plan to eventually “partially grant” the petition based on human health risks.
- The EPA could grant the petition and propose to revoke all tolerances for chlorpyrifos. Revoking tolerances would essentially ban the use of chlorpyrifos, since tolerances control the amount of pesticide residue that is allowed to remain on food and in drinking water. Without an allowable tolerance, a pesticide cannot be applied to crops.
There is probably a third option in which the EPA either begs the court for more time or proposes yet another schedule to coordinate with pesticide manufacturers about changing labeling requirements. Given the court’s tone in this latest opinion, however, we believe this path would prove a dead end.
That’s tremendous progress after years of fuzzy replies and no answers. Who knew the “extraordinary remedy of mandamus” could be so, well, extraordinary?