U.S. appeals court orders EPA to ban pesticide said to harm children

[August 10, 2018]  By Jonathan Stempel

(Reuters) - A divided federal appeals court on Thursday ordered the U.S. Environmental Protection Agency to ban a widely-used pesticide that critics say can endanger children and farmers.

The 2-1 decision by the 9th U.S. Circuit Court of Appeals in Seattle overturned former EPA administrator Scott Pruitt's March 2017 denial of a petition by environmental groups to halt the use of chlorpyrifos on food crops such as fruits, vegetables and nuts.

"This shows that the EPA can't just ignore the science that this pesticide damages children's brains," Marisa Ordonia, a lawyer for Earthjustice, which represented the petitioners, said in an interview. "The Trump administration has to follow the law, as does everyone else."

Pruitt's ruling, one of many by the administration to reduce federal regulatory oversight, had reversed a 2015 Obama administration recommendation to extend to food a 2000 ban on chlorpyrifos that covered most household settings.

Writing for the Seattle-based appeals court, Judge Jed Rakoff directed the EPA to ban chlorpyrifos within 60 days, saying the agency failed to counteract "scientific evidence that its residue on food causes neurodevelopmental damage to children."

Rakoff also faulted the EPA for going against its own 2016 risk assessment for the pesticide, "largely ignoring" and then "temporizing" in its response to the petition, and wrongly declaring that the court had no business deciding the matter.

"If Congress's statutory mandates are to mean anything, the time has come to put a stop to this patent evasion," wrote Rakoff, who normally sits on the federal district court in Manhattan.

Wyn Hornbuckle, a U.S. Department of Justice spokesman, said that office is reviewing the decision.

Pruitt's order was opposed by groups such as the Natural Resources Defense Council and the United Farm Workers, and the attorneys general of New York, California, Hawaii, Maryland, Massachusetts, Vermont, Washington state and Washington, D.C.

"Today's decision is a huge win for our children's health," New York Attorney General Barbara Underwood said in a statement.

Circuit Judge Ferdinand Fernandez dissented from Thursday's decision, saying the court lacked jurisdiction, though its discussion of the petition's merits had "some persuasive value."

In issuing his order, Pruitt had said the EPA needed to provide "regulatory certainty" to the thousands of American farms that use chlorpyrifos, while protecting people's health and the environment.

"By reversing the previous administration's steps to ban one of the most widely used pesticides in the world, we are returning to using sound science in decision making - rather than predetermined results," Pruitt had said.

EPA spokesman Michael Abboud said on Thursday that "data underlying the court's assumptions remains inaccessible and has hindered the agency's ongoing process to fully evaluate the pesticide using the best available transparent science."

The case is League of United Latin American Citizens et al v New York et al, 9th U.S. Circuit Court of Appeals, No. 17-71636.

(Corrects title of Scott Pruitt, formerly of EPA, in paragraph 2 to administrator instead of commissioner)

(Reporting by Jonathan Stempel in New York; editing by Bill Berkrot)

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