Dec 12, 2022
By Kyle Kunkler, ASA Director of Government Affairs
Petitions in government are nothing new. Since the 1940s, the Administrative Procedures Act has given any “interested person the right to petition for the issuance, amendment, or repeal of a rule,” to which an agency is required to respond, “within a reasonable time.” But couple this with the Food Quality Protection Act, which in 1996 gave any person the opportunity to file a petition “establishing, modifying, or revoking a tolerance for a pesticide,” and you have a recipe for potentially major disruptions to pesticide access.
In 2007, several activist groups filed a petition with EPA to revoke tolerances and cancel uses for chlorpyrifos, an organophosphate insecticide. The groups claimed new studies revealed the pesticide caused previously unknown neurodevelopmental effects and urged the agency to end its agricultural uses. EPA grappled with how to interpret this new data for some time. Frustrated with EPA’s delay, the groups sued the agency for unreasonable delay. The courts ordered EPA to act. In 2017, after nearly a decade since it was first filed, EPA finally rejected the petition.
Case closed, right? Hardly. This is when things take a turn for the disturbing.
Dissatisfied with EPA’s decision, the same groups opted to go back to court, this time suing to overturn the agency’s denial of the petition. And this time, they got what they were truly seeking. In April 2021, a panel of the Ninth Circuit Court of Appeals overturned EPA’s decision, directing the agency to instead grant the petition and modify tolerances or revoke those it could not find safe. What followed thereafter—EPA’s unlawful revocation of all tolerances despite safety findings by agency career scientists—is a story for a different day. For a moment, consider how remarkable this playbook is. Petition EPA to do something you want. If they delay, sue them. When they finally act, if they do not act as you would like, sue them again. But this time, have a non-expert court second guess the agency’s decision.
It should come as no surprise in late 2021—three months to the day after EPA announced the chlorpyrifos revocation decision—the same groups filed another petition, this time to revoke tolerances and cancel uses for an additional 15 organophosphate pesticides. It doesn’t stop there. Before the agency are other petitions, such as one to end uses of neonicotinoids. Recently, EPA denied much of a petition to apply duplicative regulation to pesticidal seed treatments. The group filing the petition responded that it would be “exploring all possible next steps…including a lawsuit challenging this decision.”
Agricultural groups should take note. While many, including the American Soybean Association, file comments urging the denial of unscientific petitions, more is needed. We must adopt the same ingenuity as our rivals. ASA is leading a stakeholder working group to determine how we can better defend these tools in court. Future grower access to pesticides will depend on our ability to guard the tools wherever the threats emerge, a goal to which ASA is firmly committed.