An appeals court panel April 29 ordered the Environmental Protection Agency to ban chlorpyrifos on all food crops within 60 days, unless the agency can definitively declare the residue left on food is safe.

The 2-1 ruling by the 9th U.S. Circuit Court of Appeals “virtually guarantees” the EPA will revoke chlorpyrifos tolerances on food, according to the dissenting judge, Jay Bybee.

He said his colleagues overreached, substituting its opinion for the EPA’s and moving to ban one of agriculture’s more important pesticides.

An EPA spokesman said the agency was reviewing the ruling.

“The agency is committed to helping support and protect farmworkers and their families while ensuring pesticides are used safely among the nation’s agriculture,” the agency said in a statement. “EPA will continue to use sound science in the decision-making process under the Federal Insecticide, Fungicide and Rodenticide Act.”

The ruling’s roots go back to a petition two anti-pesticide groups filed in 2007. The petition claimed chlorpyrifos was unsafe for infants and children. The petition started a long-running dispute that has now involved the Obama, Trump and Biden administrations.

The Obama administration tentatively proposed banning chlorpyrifos in 2015, but resisted court orders to make a final decision until the Trump administration was in charge. The Trump administration denied the petition, but last year proposed modifying some uses of chlorpyrifos.

Writing the court’s majority opinion, Judge Jed Rakoff said EPA has failed to follow the Federal Food, Drug and Cosmetic Act by declaring all food uses are safe. “EPA’s time is now up,” he wrote.

“The EPA must act based upon the evidence and must immediately revoke or modify chlorpyrifos tolerances,” he wrote, adding that “EPA’s egregious delay exposed a generation of American children to unsafe levels of chlorpyrifos.”

Bybee agreed with Rakoff that EPA has “dithered,” but said it was wrong to say EPA has never declared chlorpyrifos safe.

It did in 2006, and the petition shouldn’t have forced the EPA to start from scratch, Bybee stated.

Judge Jacqueline Nguyen joined in Rakoff’s ruling. Rakoff is a visiting judge from the U.S. District Court for Southern New York and has participated in earlier 9th circuit hearings on chlorpyrifos.

“The court got it right: EPA’s time is now up,” Earthjustice attorney Patti Goldman said in a statement.

“However, chlorpyrifos is just one of dozens of organophosphates used on our fruits and vegetables. So while we celebrate this win today, EPA must also ban all organophosphates to fully protect public health,” she said.

Goldman represented environmental and labor groups that filed the suit seeking the ban. The suit alleged the EPA had wrongly dismissed the petition filed in 2007.

Farm groups have defended chlorpyrifos as a safe and an effective pesticide that has been used for more than 40 years.

The scientific case against chlorpyrifos includes studies involving mice and pregnant women who were exposed to chlorpyrifos in residential settings. Most home uses of the pesticide have already been banned.

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