The Environmental Protection Agency’s ban on the insecticide chlorpyrifos was arbitrary and capricious, mainly because the two-year-old decision to ban it was rushed.

Consequently, the U.S. Court of Appeals for the Eighth Circuit has vacated the 2021 ban and ordered EPA to think about how it regulates one of the most widely used insecticides in the United States.

The EPA has 45 days to review the ruling and has the option of asking for a rehearing by the 8th Circuit’s full panel of judges.

It means, however, that after two years of growing without chlorpyrifos, the popular pesticide will be back in use in American fields in 2024.

Two years ago, the EPA revoked all “tolerances” for chlorpyrifos, which established a level of pesticide that is allowed on food. In addition, the EPA  issued a Notice of Intent under the Federal Insecticide, Fungicide, and Rodenticide Act to cancel registered food uses of chlorpyrifos associated with the revoked tolerances.

At that time, EPA Administrator Michael S. Regan said: “Ending the use of chlorpyrifos on food will help to ensure children, farmworkers, and all people are protected from the potentially dangerous consequences of this pesticide.” 

But it is Regan who was sued over the ban by the Red River Valley Sugar Beet Growers Association, United States Beet Sugar Association, American Sugar Beet Growers Association, and Southern Minnesota Beet Sugar Cooperative; American Crystal Sugar Company; Minnesota-Dakota  Farmers Cooperative; American Farm Bureau Federation; American Soybean Association; Iowa Soybean Association; Minnesota Soybean Growers Association; Missouri Soybean Association; Nebraska Soybean Association; South Dakota Soybean Association; North Dakota Soybean Growers Association; National Association of Wheat Growers; Cherry Marketing Institute; Florida Fruit and Vegetable Association; Georgia Fruit and Vegetable Growers Association; National Cotton Council of America; and Gharda Chemicals International, Inc.

In lifting the ban, the Eighth Circuit panel recalled that “Chlorpyrifos has played a large role in American agriculture for more than half a century.”

By 2017, just four years before the EPA banned its use, the ruling says “it was the most widely used conventional insecticide in the country… Its popularity was unparalleled because it stops harmful insects like caterpillars, beetles, and moths in their tracks without damaging crops.”

“But chlorpyrifos does not have a spotless safety record. Leftover residue can be harmful to humans, particularly at high levels. Historically, the EPA addressed the risk by setting “tolerance[s]” that limited the amount “in or on a food.”

“Turnip roots, for example, could have no more than 1 part per million. The limits on turnip tops, by contrast, were stricter: 0.3 parts per million. Before it decided to ban the insecticide altogether, the EPA had set specific tolerances for over a hundred different crops.”

The 8th Circuit decision also pointed out chlorpyrifos safety record.

“Before the EPA’s 2021 ban, agricultural use of chlorpyrifos had survived multiple safety reviews. In 2002, for example, the EPA concluded that ‘dietary exposures from eating food crops treated with chlorpyrifos [were] below the level of concern for the entire U.S. population; the same went for drinking-water levels, which were not a “concern.”  …Then, a few years later, the agency reaffirmed that existing tolerances met “the [tenfold] safety standard.”

After 2017, however, environmental activists were out to ban chlorpyrifos entirely. “They claimed that new studies showed that there was “no safe level of early-life exposure to chlorpyrifos.”  With EPA’s 2021 ban, they had largely succeeded.

The Nov 2 ruling says EPA “remains free to exercise its discretion as long as it considers all “important aspect[s] of the problem” and gives a reasoned explanation for whichever option it chooses.