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Chlorpyrifos Litigation Update

by Government Affairs Team | Sep 04, 2018

BREAKING NEWS: On September 24, 2018, the Department of Justice petitioned for an en banc (full panel) or (original three judge) panel rehearing of the 9th Circuit Court of Appeals decision of August 9, 2018 directing EPA to revoke all tolerances and cancel all registrations for chlorpyrifos within 60 days. GCSAA supported this decision by the DOJ. Here is a copy of the chlorpyrifos petition for rehearing.  

Corteva statement: 

We believe the Department of Justice petition for rehearing of the 9th Circuit Court of Appeals decision in this case is justified. Chlorpyrifos is a critical pest management tool used by growers around the world to manage a large number of pests that can destroy crops, and regulatory bodies in 79 countries have looked at the science, carefully evaluated the product and its significant benefits and continued to approve its use. We will continue to support the growers who need this important product. 

Here is the USDA press release

BACKGROUND:

On Aug. 9, the 9th U.S. Circuit Court of Appeals in San Francisco, in a 2-1 decision, ordered the EPA to remove chlorpyrifos from sale in the United States within 60 days.

Chlorpyrifos is a vital tool for controlling damaging pests on golf courses. The principal use of chlorpyrifos on golf courses is for the treatment of surface active insects such as those that feed on the leaves, stems and crowns of the grass plant. Several species of these insects, including sod webworms, black cutworms, chinch bugs and fire ants represent a significant threat to golf course turf in the United States.

Cortova issued a statement following the court action.

Corteva statement:

Today, the U.S. Court of Appeals for the Ninth Circuit court issued a decision to vacate the U.S. Environmental Protection Agency’s (“EPA”) 2017 order maintaining tolerances for the pesticide chlorpyrifos and remanded to the EPA with directions to revoke all tolerances and cancel all registrations for chlorpyrifos within 60 days.

It is important for all stakeholders to note that all approved uses and tolerances remain intact until the US EPA makes a final decision. EPA has options to challenge this decision. This decision does not require immediate change to uses of chlorpyrifos. We will continue to provide additional updates as we learn more.

Chlorpyrifos is a critical pest management tool used by growers around the world to manage many pests, and regulatory bodies in 79 countries have looked at the science, carefully evaluated the product and its significant benefits and continued to approve its use. We note that this was a split decision of the panel and we agree with the dissenting judge’s opinion. We expect that all appellate options to challenge the majority’s decision will be considered. We will continue to support the growers who need this important product.

What’s next?

The EPA, through the Department of Justice (DOJ), has until Sept. 24 (45 days from the decision) to petition for a rehearing – with the preferred course a rehearing “en banc” (full 9th Circuit Court). If not, then EPA could potentially move forward with the cancellation or revocation of registrations and tolerances. Nov. 30 would be a likely start date for this path. If DOJ does file for a rehearing within the 45 days, the mandate is automatically stayed, meaning the 60-day time limit for cancellation/revocation pauses. The court has no set time limit on when to respond to the petition for rehearing.

Until further notice, products containing chlorpyrifos may still be sold and used in the U.S. according to the current labels and authorized uses. GCSAA supports the EPA asking for an en banc rehearing and will do outreach to the agency to let officials know about the importance of chlorpyrifos to golf course management.