Red River Valley Sugarbeet Growers Ass'n v. Regan

85 F.4th 881

RED RIVER VALLEY SUGARBEET GROWERS ASSOCIATION; United States Beet Sugar Association; American Sugarbeet Growers Association; Southern Minnesota Beet Sugar Cooperative; American Crystal Sugar Company; Minn-Dak Farmers Cooperative; American Farm Bureau Federation; American Soybean Association; Iowa Soybean Association; Minnesota Soybean Growers Association; Missouri Soybean Association; Nebraska Soybean Association; South Dakota Soybean Association; North Dakota Soybean Growers Association; National Association of Wheat Growers; Cherry Marketing Institute; Florida Fruit and Vegetable Association; Georgia Fruit and Vegetable Growers Association; National Cotton Council of America; Gharda Chemicals International, Inc., Petitioners v. Michael S. REGAN, Administrator, U.S. Environmental Protection Agency; U.S. Environmental Protection Agency, Respondents.

CropLife America; State of North Dakota; State of Missouri, Amici on Behalf of Petitioner League of United Latin American Citizens; Pesticide Action Network; Natural Resources Defense Council; California Rural Legal Assistance Foundation; The Farmworker Association of Florida; Farmworker Justice; GreenLatinos; Labor Council for Latin American Advancement; Learning Disabilities Association of America; National Hispanic Medical Association; Pineros y Campesinos Unidos del Noroeste; United Farm Workers; United Farm Workers Foundation, Amici on Behalf of Respondent Red River Valley Sugarbeet Growers Association; United States Beet Sugar Association; American Sugarbeet Growers Association; Southern Minnesota Beet Sugar Cooperative; American Crystal Sugar Company; Minn-Dak Farmers Cooperative; American Farm Bureau Federation; American Soybean Association; Iowa Soybean Association; Minnesota Soybean Growers Association; Missouri Soybean Association; Nebraska Soybean Association; South Dakota Soybean Association; North Dakota Soybean Growers Association; National Association of Wheat Growers; Cherry Marketing Institute; Florida Fruit and Vegetable Association; Georgia Fruit and Vegetable Growers Association; National Cotton Council of America; Gharda Chemicals International, Inc., Petitioners v. Michael S. Regan, U.S. Environmental Protection Agency; U.S. Environmental Protection Agency, Respondents.

CropLife America; State of North Dakota; State of Missouri, Amici on Behalf of Petitioner

California Rural Legal Assistance Foundation; Farmworker Justice; GreenLatinos; Labor Council for Latin American Advancement; League of United Latin American Citizens; Learning Disabilities Association of America; National Hispanic Medical Association; Natural Resources Defense Council; Pesticide Action Network; Pineros y Campesinos Unidos del Noroeste; The Farmworker Association of Florida; United Farm Workers; United Farm Workers Foundation, Amici on Behalf of Respondent.

No. 22-1422

No. 22-1530

United States Court of Appeals, Eighth Circuit

Submitted: December 15, 2022

Filed: November 2, 2023

Petitions for Review of an Order of the Environmental Protection Administration

Counsel who presented argument on behalf of the Petitioners was Mr. Nash E. Long, III, of Charlotte, NC. Counsel who appeared on brief on behalf of the Petitioners were; Nash E. Long, III, of Charlotte, NC., Brent A. Rosser of Charlotte, NC., Erica N. Peterson, of Washington, DC., Donald C. McLean of Washington, DC., and Kathleen R. Heilman of Washington, DC.

Counsel who presented argument on behalf of the Respondents was Laura J. Glickman, of Washington DC. Counsel who appeared on brief on behalf of the Respondents were Angela Huskey, of Washington, DC, Aaron Newell, of Washington, DC, Todd Kim, of Washinton DC., and Laura Glickman, of Washington DC.

The following attorney(s) appeared on the amicus briefs in support of the Petitioners; Ashley Boles, of Arlington, VA. Dean John Sauer, AAG, of Saint Louis, MO., Kara Kapke, of Indianapolis, IN., Rachel G. Lattimore, of Arlington, VA., Paul Martin Seby, AAG, of Denver, CO., Joseph Paul Bialke, I, AAG, of Bismarck, ND., Jeff P. Johnson, AAG, of Saint Louis, MO., Justin D. Smith, AAG, of New Bloomfield, MO., The following attorneys appeared on the amicus brief in support of the Respondents; Patti Ann Goldman, of Seattle, WA., Kristen Lee Boyles, of Seattle, WA.

Before SMITH, Chief Judge, GRUENDER and STRAS, Circuit Judges.

STRAS, Circuit Judge.

Facing a tight deadline from the Ninth Circuit, see League of United Latin Am. Citizens v. Regan, 996 F.3d 673, 703 (9th Cir. 2021), the Environmental Protection Agency banned the use of chlorpyrifos on food crops. Its decision was arbitrary and capricious, see 5 U.S.C. § 706(2)(A), so we grant the petitions for review and vacate its order.

I.

This is the latest round in the battle over chlorpyrifos, which has been waged behind the scenes for some time. To understand the stakes, we lay out some background information, including what chlorpyrifos does and how the EPA has regulated it.

A.

Chlorpyrifos has played a large role in American agriculture for more than half a century. By 2017, just four years before the EPA banned its use, "it [wa]s the most widely used conventional insecticide in the country." See Chlorpyrifos; Order Denying PANNA and NRDC's Petition to Revoke Tolerances, 82 Fed. Reg. 16581, 16584 (Apr. 5, 2017). Its popularity was unparalleled because it stops harmful insects like caterpillars, beetles, and moths in their tracks without damaging crops.

But chlorpyrifos does not have a spotless safety record. Leftover residue can be harmful to humans, particularly at high levels. Historically, the EPA addressed the risk by setting "tolerance[s]" that limited the amount "in or on a food." 21 U.S.C. § 346a(a)(1). Different crops had different limits. See 40 C.F.R. § 180.342 (listing chlorpyrifos tolerances); Nat. Res. Def. Council v. Johnson, 461 F.3d 164, 168 (2d Cir. 2006) ("[A] separate tolerance (or exemption) must be established for each pesticide-food combination."). Turnip roots, for example, could have no more than 1 part per million. See 40 C.F.R. § 180.342(a)(1). The limits on turnip tops, by contrast, were stricter: 0.3 parts per million. Id. Before it decided to ban the insecticide altogether, the EPA had set specific tolerances for over a hundred different crops. See U.S. EPA, Interim Reregistration Eligibility Decision for Chlorpyrifos 3 (2002).

Chlorpyrifos also came in hundreds of different forms, each of which had to be "registered" with the EPA. See 7 U.S.C. § 136a; see also Reckitt Benckiser Inc. v. EPA, 613 F.3d 1131, 1133 (D.C. Cir. 2010). At one time, there were nearly 1,000 "registrations" for products containing chlorpyrifos. See U.S. EPA, Agreement Reached Between EPA and Chlorpyrifos Pesticide Registrants (June 6, 1997).

The tolerance and registration processes focus on product safety. See 7 U.S.C. § 136a(c)(5)(C) (authorizing registration of a pesticide only if "it will perform its intended function without unreasonable adverse effects on the environment"); id. § 136(bb) (defining "unreasonable adverse effects on the environment" to include "any unreasonable risk to man or the environment" (emphasis added)); 21 U.S.C. § 346a(b)(2)(A)(i) ("The Administrator may establish or leave in effect a tolerance ... only if the Administrator determines that the tolerance is safe."); id. § 346a(b)(2)(A)(ii) (defining "safe" as "a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue"). In 1996, Congress added a cushion above and beyond what it had required before: a "tenfold margin of safety for the pesticide chemical residue... for infants and children to take into account potential pre- and post-natal toxicity." 21 U.S.C. § 346a(b)(2)(C)(ii).

Before the EPA's 2021 ban, agricultural use of chlorpyrifos had survived multiple safety reviews. In 2002, for example, the EPA concluded that "[d]ietary exposures from eating food crops treated with chlorpyrifos [were] below the level of concern for the entire U.S. population." U.S. EPA, Interim Reregistration Eligibility Decision, supra, at 2. The same went for drinking-water levels, which were not a "concern." Id. Then, a few years later, the agency reaffirmed that existing tolerances met "the [tenfold] safety standard." See Memorandum from Debra Edwards, Dir., Special Rev. & Reregistration Div., Off. of Pesticide Programs, to Jim Jones, Dir., Off. of Pesticide Programs 1-2 (July 31, 2006).

B.

Environmental groups had a different view. Two petitioned the EPA in 2007 to have all tolerances revoked. See NRDC, Petition to Revoke All Tolerances and Cancel All Registrations for the Pesticide Chlorpyrifos (Sept. 12, 2007); see also 21 U.S.C. § 346a(d)(1)(A) (allowing "[a]ny person" to file a petition that proposes "revoking a tolerance"). They claimed that new studies showed that there was "no safe level of early-life exposure to chlorpyrifos." NRDC, supra, at 5, 11-13 (explaining that, although exposure was below a key safety threshold, researchers still saw adverse effects).

The EPA gave "due consideration" to the petition over the following decade. 21 U.S.C. § 346a(d)(4)(A); see, e.g., U.S. EPA, Revised Human Health Risk Assessment for Registration Review 13 (2016) (reviewing additional studies that "support[ed]" the "results" cited by the environmental groups). It acknowledged that the groups had raised "risk concerns" about how chlorpyrifos impacted children, including through drinking water, but it was not sure what to do about it. See League of United Latin Am. Citizens, 996 F.3d at 717 (Bybee, J., dissenting) (quoting the EPA's March 2015 Provisional Response). So it explored two paths at the same time: "proposing to revoke all chlorpyrifos tolerances" while also "soliciting comment on whether it may be possible to retain some." Chlorpyrifos; Tolerance Revocations, 80 Fed. Reg. 69080, 69106 (Nov. 6, 2015).

Time eventually ran out. The environmental groups grew impatient and filed a petition for a writ...