On November 2, a three-judge panel of the Eighth Circuit issued a unanimous opinion in Red River Valley Sugarbeet Growers Association et al. v. Regan. The court vacated EPA’s decision to revoke all “tolerances” for residue on food of the pesticide chlorpyrifos and remanded the matter back to the Agency for further proceedings. The case hinged on a subtle but important question about the scope of EPA’s authority under the pesticide laws, but it has broader implications for environmental law and policy.

My blog post from December 2022 set forth in detail the legislative, regulatory, and procedural background of the dispute. To summarize here, EPA’s position was that its hands were tied: the Ninth Circuit in an earlier case had given it a deadline to either affirmatively find that all existing food-residue tolerances for chlorpyrifos were safe, or revoke them. Because there wasn’t enough time to modify the terms of chlorpyrifos’ pesticide registration to permit only those uses whose associated food residue EPA viewed as safe, the Agency felt it had no choice but to revoke tolerances for all uses.

The Eighth Circuit disagreed, ruling that EPA’s revocation was arbitrary and capricious because it was based on a misunderstanding of its own authority and a resulting failure to consider all available options. Specifically, the court construed the relevant statutory provision differently than EPA did.

The statute provides that, to leave a food-residue tolerance in effect, EPA must find “a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information” (emphasis added). EPA’s view was that this statute gave it no choice: it couldn’t “anticipate” that it would modify the terms of chlorpyrifos’ registration to only permit safe uses, but rather (at least once under a court-ordered deadline) it could only “anticipate” that all permitted uses would continue, resulting in its having only two options: find all uses safe (which it couldn’t do), or ban them all (which is what it did).

Not so, said the court (emphasis added):

The EPA can typically expect current exposures to continue. But not always. When other tolerances are likely to change, determining “anticipated . . . exposures” requires looking at what is “expect[ed],” American Heritage Dictionary, supra, at 77. Sometimes it involves predicting exposures from additional uses. Other times, like in this case, expected exposures will drop if the agency anticipates revoking existing tolerances.

Under this reading, EPA had a fuller range of options than it believed. The court’s opinion was careful to stress that it was not telling EPA how to handle the matter on remand. “But this time, it must at least recognize the full scope of what it can do before announcing what it will not do.”

The resolution of this case may have major implications for how EPA registers pesticides and reviews prior registrations (which it must do on a fifteen-year cycle). The court read EPA’s statutory authority to predict the future course of pesticide residue exposure as being broader, more informed by circumstances, and more flexible than the Agency did. The decision will caution the Agency to be sure, here and in analogous situations under other statutes, that it has fully identified the range of options it has before it selects one.

From the perspective of legal realism, this case highlights the importance of venue provisions. This has implications not just for pesticide law, but for EPA’s broader approach to chemicals regulation.

Under the pesticide statutes, generally speaking, parties can pick which court they wish to sue in, unlike under certain other statutes, such as the Clean Air Act, which funnels all challenges to nationwide actions to the D.C. Circuit. Here, earlier litigation brought by NGOs in the Ninth Circuit resulted in an order for EPA to act on a short timeline. But the challenge to EPA’s eventual action was brought by industry in the Eighth Circuit. The personnel and jurisprudence of the individual judges composing the various courts’ rosters may have played a role here, and they are likely to do so even more in the future.

EPA’s chemicals office administers two main programs: the pesticide program, at issue here, and the Toxic Substances Control Act (TSCA), which regulates non-pesticidal chemicals. TSCA was given a major legislative overhaul in 2016, resulting in a lengthy risk-evaluation and risk-management regulatory process which is only now, seven years later, yielding regulatory proposals to restrict or ban the use of certain chemicals. (You can’t sue on a determination that a chemical presents an unreasonable risk, only against the eventual regulation EPA issues to eliminate that risk, so although there’s been a lot of scientific and regulatory activity under the newly expanded TSA, there hasn’t been much litigation—yet.)

TSCA, like the pesticide statute (but unlike the Clean Air Act), permits challengers (with some restrictions) to pick their court. So, in the coming years, we may see administrative and environmental cases decided by a broader range of courts and judges than in the past. This will make it more difficult for EPA to assess the litigation risk of the actions it takes; it will give those challenging EPA’s actions from whatever perspective a broader range of locations and approaches to do so.

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