Hunton Andrews Kurth Helps Secure Critical Result Against EPA For Agricultural Clients

On November 2, 2023, Hunton Andrews Kurth LLP (Hunton) helped secure a critical victory in the U.S. Court of Appeals for the Eighth Circuit for a coalition of 19 agricultural grower groups. The Eighth Circuit vacated a 2021 decision from the U.S. Environmental Protection Agency (EPA) that had stopped the use of chlorpyrifos, a pesticide that was used for decades to control insects without damaging crops. The effectiveness of chlorpyrifos had made it a top selling pesticide with more than 50 agricultural uses applied to almost 9 million acres. 

EPA registered chlorpyrifos under the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) and set tolerances that limited the amount of pesticide residue in or on food. These tolerances, which are specific to each crop for which the product is used, ensured that anticipated aggregate exposure to the pesticide would be safe under the Federal Food, Drug, and Cosmetic Act. EPA estimated that the benefits of using chlorpyrifos for crop production were between $19-130 million annually.

In 2021, however, in response to a petition from environmental groups, the Ninth Circuit ordered EPA to either revoke all of the chlorpyrifos tolerances or modify them consistent with EPA’s scientific evaluation. Just months before the Ninth Circuit ruled, EPA released a registration review decision which showed that chlorpyrifos could be safely used on 11 crops. For these 11 crops, the tolerances were safe. Rather than conform the allowable tolerances to the science, EPA revoked all of the tolerances despite its safety finding, concluding that the Ninth Circuit’s decision, including the short timeline it imposed, made it impossible for EPA to modify the tolerances consistent with its own scientific findings.

Hunton attorneys and regulatory science team represented the growers from a cross-section of American agriculture in initiating the rule challenge in the U.S. Court of Appeals for the Eighth Circuit and, working alongside counsel representing Gharda Chemicals International, Inc., a manufacturer of chlorpyrifos, argued that EPA’s decision was arbitrary and capricious under the Administrative Procedure Act because EPA failed to consider its own science and modify the tolerances accordingly. The Eighth Circuit agreed that the decision was arbitrary and capricious and vacated the rule.