ELR Citation: 51 ELR 20075
No(s). 19-71979 and 19-71982 (9th Cir. Apr 29, 2021)

The Ninth Circuit granted, 2-1, environmental groups' petitions to review EPA's 2017 decision denying their 2007 petition seeking to revoke all tolerances and registrations for the insecticide chlorpyrifos and its 2019 decision denying all objections to the 2017 decision. In their 2007 petition, the groups argued that scientific evidence showed current tolerances for chlorpyrifos were not safe, especially for infants and children. After years of agency inaction, the groups sought a writ of mandamus, which the court granted, finding EPA's delay "egregious" and ordering the Agency to issue a final response to the 2007 petition. The Agency eventually took final action in 2017, concluding that further evaluation was needed despite years of study. The groups objected to the Agency's decision, which the Agency subsequently denied, and the groups sought review of EPA's 2017 and 2019 decisions. The court found that EPA failed to find the current tolerance for the insecticide to be safe for the general population and for infants and children and thus that its denial of the petition, which left the tolerance in effect, violated the Federal Food, Drug, and Cosmetic Act. It further found the Agency's denial was arbitrary and capricious because none of the reasons it gave for its 2017 and 2019 decisions provided "a satisfactory explanation for" denying the petition. It therefore vacated EPA's decisions and ordered the Agency to either modify chlorpyrifos tolerances and publish a finding that the modified tolerances are safe or revoke all tolerances for the insecticide within 60 days.