Brian Nguyen

—

Hidden in the food we eat daily, chlorpyrifos has been afflicting innocent people for decades. Chlorpyrifos kills insects upon contact by disrupting their nervous system. Similar to other organophosphate pesticides, chlorpyrifos is toxic to the nervous system because it creates an accumulation of acetylcholine which prevents regulated communication between nerve cells and overstimulates the nerves.[1] Unfortunately, EPA has found chlorpyrifos to also affect human health by causing headaches, dizziness, nausea, confusion, muscle twitching, loss of coordination, respiratory paralysis, vomiting, diarrhea, brain damage to children, IQ reduction, working memory loss, and death.[2]

In 1996, Congress enacted the Food Quality Protection Act (FQPA)[3] which amended the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)[4] and the Federal Food, Drug, and Cosmetic Act (FFDCA).[5] The FQPA revamped FIFRA and FFDCA to change the way in which pesticide chemical tolerances were evaluated.[6] The amendment required reassessments of all existing pesticide tolerances and then to reassess registered pesticides every fifteen years.[7] After extensive research, the EPA released several risk assessment memos concluding that chlorpyrifos was dangerous to human health and that restrictions are required to protect the public safety.[8] Subsequently, the EPA banned the majority of household chlorpyrifos products and set limitations on aerial spray areas.[9]

However, wanting more, environmental groups have petitioned for the EPA eliminate all chlorpyrifos tolerances to adequately protect the public health.[10] EPA responded to the petition with an Initial Denial Order to keep the chlorpyrifos tolerances at the current levels.[11] The environmental groups sought judicial review of EPA’s order with the Ninth Circuit Court of Appeals.[12] As a result, the Ninth Circuit ordered EPA to revoke all chlorpyrifos tolerances  and cancel all registrations of chlorpyrifos;[13] however, the EPA refused to do so.[14] On September 12, 2018, the EPA filed a petition for an en bancand panel rehearing to contend that the Ninth Circuit does not have jurisdiction to review an Initial Denial Order and to order the EPA to revoke all chlorpyrifos tolerances.[15] On February 6, 2019, the Ninth Circuit granted EPA’s petition and ordered the case be reheard en banc, effectively overruling its order to EPA to ban chlorpyrifos.[16]

This Note will observe whether the en bancrehearing will find that the Ninth Circuit has jurisdiction under FFDCA and FIFRA to review an Initial Denial Order and to order the EPA to revoke all chlorpyrifos tolerances. Part I will discuss how the court has the authority to review Initial Denial Order under FFDCA. Part II will discuss how the court is allowed to direct EPA to take specific actions. Last, Part III will discuss how the court previously did not perform a thorough FIFRA analysis and erroneously ordered EPA to cancel the registration of all chlorpyrifos products.

[1]Chlorpyrifos Technical Fact Sheet, Nat’l Pesticide Info. Ctr., http://npic.orst.edu/factsheets/archive/chlorptech.html (last visited Sept. 27, 2018).

[2]Memorandum from Debra Edwards, Director of the Special Review and Reregistration Division of the Office of Pesticide Programs, to Jim Jones, Director of the Office of Pesticide Programs 3 (July 31, 2006) [hereinafter Edwards Memo].

[3]110 Stat. 1489 (1996).

[4]7 U.S.C. §§ 136–136y.

[5]21 U.S.C. §§ 301–394.

[6]110 Stat. 1489 (1996).

[7]Id.; 7 U.S.C. § 136a(g).

[8]Bueschen, An Agreement Between EPA and Pesticide Manufacturers to Mitigate the Risks of Chlorpyrifos, 31 ELR 10452, 10453 (2001).

[9]Edwards Memo, supra note 2, at xii, 3; see generally Memorandum from Danette Drew et. al, Health Effects Division, to Tom Myers, Pesticide Re-evaluation Division (December 9, 2014) [hereinafter Drew Memo].

[10]Petition to Revoke All Pesticide Tolerances and Cancel All Registrations for the Pesticide Chlorpyrifos 1 (Sept. 12, 2007).

[11]Order Denying PANNA and NRDC’s Petition To Revoke Tolerances, 82 Fed. Reg. 16,581 (Apr. 5 2017) [hereinafter Denial Order].

[12]League of United Latin American Citizens v. Wheeler, 899 F.3d 814, 820 (9th Cir. 2018).

[13]Id. at 829.

[14]80 Fed. Reg. 69080 (Nov. 6, 2015); 82 Fed. Reg. 16,581 (Apr. 5, 2017).

[15] Petition for En Banc and Panel Rehearing 1 (September 24, 2018)

[16]League of United Latin American Citizens v. Wheeler, 914 F.3d 1189 (9th Cir. 2019).