The Ninth Circuit has vacated a 2017 Environmental Protection Agency (EPA) order allowing some uses of the pesticide chlorpyrifos, remanding the matter to the agency with directions to revoke all tolerances and cancel all registrations for the pesticide within 60 days. League of United Latin Am. Citizens v. Wheeler, No. 17-17636 (9th Cir., entered August 9, 2018.) Eleven plaintiffs and eight states acting as intervenors petitioned the court to review the order, arguing that the tolerances were inconsistent with the Food, Drug and Cosmetic Act (FDCA) in “the face of scientific evidence that [chlorpyrifos] residue on food causes neurodevelopmental damage to children … a need for additional scientific research is not a valid ground for maintaining a tolerance that, after nearly two decades of studies, has not been determined safe to a ‘reasonable certainty.’”

EPA argued that FDCA’s administrative process requirements deprive the court of jurisdiction until EPA issues a response to the petitioner’s objections, which has not occurred. The court determined that the process does not “clearly state” that obtaining an order in response to administrative objections is a jurisdictional requirement. The section “‘is written as a restriction on the rights of plaintiffs to bring suit, rather than as a limitation on the power of the federal courts to hear the suit’ … It delineates the process for a party to obtain judicial review, by filing suit in one of two venues within a specified time, not the adjudicatory capacity of those courts.”

In a 2-1 decision, the court found no justification for the 2017 order and that EPA could not refuse to act on the grounds that it might find additional scientific evidence in the future. The court held that “EPA’s interpretation of the [FDCA’s] administrative review provision as providing limitless time to respond to objections would give the agency ‘virtually unlimited discretion to bury large claims like [petitioners’] in the administrative process, and to stay judicial proceedings for an unconscionably long period of time.’”

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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