Appeals court tells EPA to ban pesticide or decide it's safe

Environmental Protection Agency (EPA) Administrator Michael Regan, appears before a Senate Appropriations Committee hearing on Capitol Hill, Tuesday, April 20, 2021 in Washington. (Oliver Contreras/The Washington Post via AP, Pool)
Environmental Protection Agency (EPA) Administrator Michael Regan, appears before a Senate Appropriations Committee hearing on Capitol Hill, Tuesday, April 20, 2021 in Washington. (Oliver Contreras/The Washington Post via AP, Pool) (Oliver Contreras)

WASHINGTON – A federal appeals court on Thursday ordered the Environmental Protection Agency to quickly determine whether a pesticide linked to brain damage in children should be banned, saying the agency had delayed acting on the widely used bug-killer chlorpyrifos for nearly 14 years.

In a 2-1 decision, the San Francisco-based 9th U.S. Circuit Court of Appeals ordered the EPA to act on a possible ban within 60 days.

“The EPA has spent more than a decade assembling a record of chlorpyrifos’s ill effects,″ U.S. District Judge Jed S. Rakoff wrote. “Yet, rather than ban the pesticide or reduce the tolerances to levels that the EPA can find are reasonably certain to cause no harm, the EPA has sought to evade, through one delaying tactic after another, its plain statutory duties.″

Rakoff and U.S. Circuit Judge Jacqueline H. Nguyen ordered the EPA to decide within 60 days whether the pesticide is safe, including for infants and children, or ban it.

U.S. Circuit Judge Jay S. Bybee, in dissent, said 60 days was too short, "likely predetermining EPA’s option'' and forcing a ban.

“This is a vast overreach, a clear abuse of our discretion,'' Bybee wrote.

The decision comes after a yearslong battle over the pesticide, which is widely used on oranges, soybeans, almonds and other crops.

During the Obama administration, the EPA had initiated a ban, but the agency reversed that decision shortly after President Donald Trump took office in 2017. The EPA rejected a legal challenge in 2019, saying environmental groups had failed to prove a ban was warranted.