Yesterday’s front page of the Los Angeles Times feature an important story about a Ninth Circuit Court of Appeals decision concerning chloropyrifos. The prominence of the article reaffirms the importance  of controlling the use of pesticides.

Coincidentally, we have been planning to submit an additional comment to the EPA regarding its proposed “Anti-Environment” Regulation and issues related to the  Federal Insecticide, Fungicide and Rodenticide Act. While the FIFRA comment is just one of many that we have filed in advance of the August 16, 2018 comment deadline,  the FIFRA issues touch almost everyone’s lives. Pesticides are everywhere.

As before, the substance of our comments is below.  Also, we apologize for the lack of quotation marks and special formatting to make it clear that the following text was “cut”  from our comments.

From Rachel Carson’s serialized publication of Silent Spring to the present day, America has dealt with mountains of scientific evidence concerning the environmental damage (including damage to humans) caused by pesticides. See generally Congressional Research Service, Pesticide Law: A Summary of the Statutes, Nov. 14, 2012 (overview of pesticide law). Little, if any of such evidence was generated by studies that were verifiable and public in the sense contemplated by EPA’s proposed “Anti-Environment” Regulation.

While much of the data included private medical data protected by privacy laws such as HIPAA, much of the data was private and or difficult to reproduce for other reasons (for example, endangered wildlife surveys may not be able to be repeated without impermissibly harming the wildlife).

A striking example of the risks posed by the proposed “Anti-Environment” Regulation was highlighted this week when the Ninth Circuit USCA released its decision in League of United Latin American Citizens v. Wheeler, Case No. 17-71636 (decision published August 9, 2018; slip op. attached). In that case, the Ninth Circuit ruled that EPA had to ban the use of chloropyrifos on food products because of the studies showing the harms to humans. L. Dolan, Court orders ban on pest killer, Los Angeles Times, Aug. 10, 2018, pages A1 and A7.

In the event the EPA’s “Anti-Environment” Regulation were in effect, chloropyrifos could not be banned despite the pesticide’s documented risks to the brains of children. Id.

By forcing EPA to ignore such private (and appropriately non-public) data, the proposed anti-environment rule is fiendishly calculated to block the EPA staff from considering the best data available. This scheme has at least three devastating flaws.

First, the proposed rule will nonsensically bar EPA from considering the best scientific data available disabling EPA rulemaking. This rule would violate the agency’s common sense and statutory duty to consider the sound scientific data.

Second, the proposed regulation turns the statutory scheme of FIFRA upside down. Very limited amounts of pesticides on food products are allowed only if EPA determines the amount to be safe. Slip op. p. 7. See also slip op. at p. 9 (explaining how the EPA must meet FDA standards on this). The proposed regulation seeks to exclude much information that establishes the pesticide’s harm whereas the statute requires the manufacturer to prove that the amount is safe.

Third, before EPA approves its proposed regulation, NEPA requires that EPA prepare an EIS. That EIS must include a detailed analysis of each registered pesticide’s environmental impacts. Such analysis of each pesticide should include: the quantity of the pesticide used every year, the number of applicators applying the pesticide each year, the human toxicity of the pesticide, the non-human affect of the pesticide on the flora and fauna within wind’s reach of the pesticide application area, the pesticide’s impact on groundwater underlying the application area. Also in light of the studies relied in the United case, it I s clear that the EIS must also include a detailed analysis of the pesticide’s impact on the family of the applicators and any other people living near the application area. United, slip op at p. 11-12 (discussing internal EPA studies). Given that there are thousands of registered deadly pesticides, EPA should begin work on the EIS immediately. P. Finegan, FIFRA Lite: A Regulatory Solution or Part of the Pesticide Problem?, 6 Pace Environmental Law Review 615, 624 (1989) (noting that there are over fifty thousand registered pesticide products with over 600 active ingredients).