More than 100 members of the House of Representatives—all Democrats—are sponsoring or co-sponsoring the so-called Ban Toxic Pesticides Act of 2019, H.R.230. This short bill would immediately ban all sale and use of chlorpyrifos, a highly beneficial insecticide long used in agricultural production and for certain other uses such as mosquito control and turf maintenance.
In the Senate, a somewhat more elaborate Democrat-sponsored bill with a similarly inflammatory title—the Protect Children, Farmers, and Farmworkers from Nerve Agent Pesticides Act of 2019, S.921—would accomplish the same objective.
These politically motivated bills are a legislative meat axe. They would abruptly terminate all remaining chlorpyrifos uses (termite control uses were voluntarily phased out two decades ago) rather than allowing the U.S. Environmental Protection Agency (EPA) to mitigate their potential risks with a regulatory scalpel. The bills would destroy the “finely tuned control of pesticides” that Congress intended EPA to exercise under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). See S. Rep. No. 838, 92d Cong. 2d Sess. 1 (1972). Instead, the machinations of politicians who lack any scientific expertise or regulatory experience would short-circuit the ongoing efforts of the EPA scientists and risk managers who are conducting the methodical, FIFRA-mandated, chlorpyrifos Registration Review.
In fact, the bills would pander to the interests of strident anti-pesticide groups, which have unsuccessfully petitioned EPA to cancel all FIFRA registrations for chlorpyrifos, and revoke all of its related agricultural crop tolerances. After EPA considered and denied their petition, the anti-pesticide and allied public interest groups filed objections to EPA’s underlying scientific analyses. Now EPA has issued a final order denying those objections. More specifically, EPA has explained at great length that the objections “regarding neurodevelopmental toxicity must be denied because [they] are not supported by valid, complete, and reliable evidence.” 84 Fed. Reg. 35555, 35557 (July 24, 2019).
But the chlorpyrifos ban bills would override EPA’s scientific judgments and regulatory discretion. EPA, of course, is an expert federal agency with almost half a century of pesticide-related technical knowledge and regulatory experience. In a recent case, a Supreme Court plurality recognized that Congress is “dependent . . . on the need to give discretion to executive officials to carry out its programs.” Gundy v. United States, No. 17-6086 (decided June 20, 2019), slip op. at 17. “[I]n our increasingly complex society, replete with ever changing and more technical problems . . . Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Id. at 5 (internal quotation marks omitted).
That is what Congress did almost 50 years ago by delegating comprehensive pesticide regulatory authority to EPA under FIFRA. The statute establishes a pesticide registration standard which requires EPA to balance the risks of using a pesticide against its benefits. 7 U.S.C. § 136a(c)(5); see id. § 136(bb). To ensure that a registered pesticide continues to meet the statutory standard, FIFRA requires EPA to conduct a periodic review of every registered pesticide active ingredient. See id. § 136a(g) (Registration Review). If EPA proposes to cancel or suspend the registrations of a pesticide, FIFRA also guarantees due process to pesticide registrants and other adversely affected parties: the right to object and request an administrative hearing, followed if necessary, by judicial review. See id.
§§ 136d(b) & (c), 136n.
The chlorpyrifos ban bills, however, would deprive EPA of the ability to continue reassessing, and to the extent necessary mitigating, potential chlorpyrifos risks so that they are outweighed by that pesticide’s benefits. And the bills apparently would deprive registrants and other stakeholders of the procedural due process, as well as substantive due process, that Congress built into FIFRA.
The chlorpyrifos ban bills are dangerous examples of congressional overreach, and should not be given serious consideration.
Capital Appellate Advocacy PLLC founder Larry Ebner has been representing and advising pesticide producers and users for the past 45 years.