The 9th U.S. Circuit Court of Appeals will reconsider outlawing chlorpyrifos, a pesticide banned by a three-judge panel in August, but that farm groups say is vital to food production.
A new hearing is a victory for the Environmental Protection Agency, as well as farm groups. A majority of the court's judges has voted to set aside the August ruling and rehear the case in late March in San Francisco.
A time and date has not been set. The case will be heard by 11 judges drawn by lot from the court's roster of judges.
The Trump EPA asked for rehearing after it was ordered in a 2-1 decision to cancel all uses of chlorpyrifos.
The American Farm Bureau Federation and more than two dozen other farm groups filed a court brief supporting the EPA's motion.
The farm groups argue banning chlorpyrifos would weak havoc on U.S. agriculture. In use on farms since 1965, chlorpyrifos is approved for more than 50 crops and is also used to protect livestock from disease-carrying insects.
The case stems from a petition to ban chlorpyrifos filed in 2007 by the Natural Resources Defense Council and the Pesticide Action Network North America. Environmental groups claim total exposure to the pesticide on food, in drinking water and the environment harms the brains of young children.
Under a court order to make a decision, the Obama EPA proposed banning the pesticide in 2015, but delayed making a final decision until the change in administrations. Faced with a new deadline from the court, the Trump EPA denied the petition in March 2017 and said it would continue assessing chlorpyrifos.
The August ruling was written by visiting Judge Jed Rakoff of the U.S. District Court for the Southern District of New York. The majority ruled that the EPA could not justify its decision in the face of evidence that residue on food causes neurodevelopmental damage to children.
The EPA argues the ruling was premature because the science is unsettled and was too broad because the ban also applied to non-food uses. The USDA, under the Obama and Trump administrations, has defended chlorpyrifos as safe and in some cases the only effective chemical against dangerous pests.
The lawsuit to ban chlorpyrifos was flied by the League of United Latin American Citizens, Pesticide Action Network North America, Natural Resources Defense Council, California Rural Legal Assistance Foundation, Farmworkers Association of Florida, Farmworkers Justice Green Latinos, Labor Council for Latin American Advancement, Learning Disabilities Association of America, National Hispanic Medical Association, Pineros Y Campesinos Unidos Del Noroeste and United Farm Workers. The nonprofit law firm Earthjustice represents them.
Washington Attorney General Bob Ferguson has intervened in the case, urging a ban. He is joined by attorneys general in Maryland, Massachusetts, New York and the District of Columbia.