Seven State Attorneys General Sue US Federal EPA For Public Endangerment

6 June 2017 | New York Attorney General Eric T. Schneiderman, leading a coalition of seven state Attorneys General, announced a challenge to President Trump’s Environmental Protection Agency (EPA) for violating federal law regarding toxic pesticides. Chlorpyrifos, a widely-used pesticide on food crops – including those consumed by infants, young children, and pregnant women – is shown to negatively impact proper development and functioning of the central nervous system and brain.

“The EPA’s first job is ensuring the health and safety of New Yorkers and all Americans – especially our children. Yet the Trump administration is jeopardizing our children’s health by allowing continued exposure to this toxic pesticide at levels it has not found to be safe,” said Attorney General Schneiderman. “If the Trump Administration won’t follow the law – and put our children’s wellbeing first – we will fight back.”

Joining Attorney General Schneiderman in the challenge are the Attorneys General of California, Maine, Maryland, Massachusetts, Washington, and Vermont. Click here to read the filing.

The Attorneys General charge that the EPA failed to make a key safety finding needed to continue to allow levels of chlorpyrifos, a common agricultural pesticide, on fruits and vegetables consumed by the public. The federal Food, Drug, and Cosmetic Act (Food Act) requires EPA to revoke allowable levels – or “tolerances” – for pesticide residues on foods if the Agency is unable to determine that the levels are safe.

The public health dangers of chlorpyrifos are well-documented, with EPA’s own scientists twice being unable to identify a safe level for the pesticide on food. In November 2015 and again in November 2016, EPA issued proposed regulations to revoke all tolerances and no longer allow chlorpyrifos to be used on food. However, in one of his first official acts, EPA Administrator Scott Pruitt disregarded those proposals and decades of accumulated scientific evidence and – citing “uncertainty” in chlorpyrifos’ toxicity – issued an order putting off until October 2022, if not longer, any decision on whether to revoke or modify current food tolerances for the pesticide.
In their challenge announced today, the Attorneys General argue that the Administrator’s order leaving in place current tolerances for chlorpyrifos residues on food violates the Food Act because it fails to include the finding of safety required to maintain these tolerances.

Chlorpyrifos is one of the most widely used insecticides in the United States on numerous food crops, including those consumed by infants and young children such as apples, strawberries, cherries, bananas, pears, peaches, nectarines, and cherries. Residues of the pesticide have repeatedly been documented in baby foods and juices. Chlorpyrifos has been subjected to regulatory review for nearly 20 years, and its toxic harms are well-documented. The pesticide acts by inhibiting an enzyme that is key to the proper development and functioning of the central nervous system and brain. Columbia University studies have shown that children born to women exposed to chlorpyrifos during pregnancy had cognitive and motor development delays in the first 3 years, and structural changes in the brain, lower working memory and IQ scores at age seven, and movement disorders (including arm tremors) at age eleven.

In 2007, the Natural Resources Defense Council and the Pesticide Action Network North America filed a petition with EPA requesting revocation of chlorpyrifos food tolerances under the Food Act. The groups later had to sue EPA to force action on the petition. In 2015 and again in 2016, EPA issued notices of proposed rulemaking to revoke all tolerances for the pesticide on food because the Agency was unable to identify a safe level of chlorpyrifos on food. Significantly, the 2016 notice stated that “EPA can only retain chlorpyrifos tolerances if it is able to conclude that such tolerances are safe.”

Despite EPA’s certainty that it could not find the current chlorpyrifos food tolerances safe under the Food Act, on March 29, 2017, roughly a month after his confirmation, Administrator Pruitt issued an order abruptly changing position on the proposed regulations and denying the administrative petition by the environmental groups to revoke the current tolerances for chlorpyrifos on food. He effectively left the tolerances in place indefinitely.
The coalition of Attorneys General is challenging Administrator Pruitt’s order as a violation of the Food Act because it leaves current food tolerances for chlorpyrifos in effect without finding that they are safe. The coalition contends that the Food Act does not give EPA the authority to leave tolerances in place in the absence of a finding of safety. Their filing argues that the Act requires the Agency to either find tolerances on food safe or it must revoke or modify the current tolerances; there is no provision in the Food Act allowing the Trump EPA to do what it has done by leaving tolerances in effect but not making a safety finding.

The coalition’s challenge, which was filed with EPA, requests that the Agency vacate its recent order that left chlorpyrifos residue tolerances in effect without finding them safe. The Attorneys General further request that EPA issue a final order within 60 days on the State coalition’s objections and a final regulation revoking tolerances for chlorpyrifos on food.

This matter is being handled by New York Assistant Attorney General Maureen F. Leary and Environmental Scientist Jennifer Nalbone under the supervision of the Lemuel M. Srolovic, Chief of the Attorney General’s Environmental Protection Bureau. The Bureau is part of the Division of Social Justice, which is led by Executive Deputy Attorney General for Social Justice Alvin