Judge Won’t Order EPA to List Possible Hazardous “Inert” Ingredients on Pesticide Labels

Friday, June 10, 2016

By Nicholas Iovino, Courthouse News Service

SAN FRANCISCO — A federal judge Wednesday sided with the Environmental Protection Agency (EPA) in a lawsuit from environmentalists and physicians who claim the agency fails to protect consumers from toxins in pesticides.

The EPA has no mandatory duty to require disclosure of “inert” ingredients in pesticides, even if those ingredients qualify as hazardous chemicals under separate statutes, U.S. District Judge William Orrick said during a hearing Wednesday.

The Center for Environmental Health and Physicians for Social Responsibility sued the EPA a year ago, claiming it shirked its duty under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The Beyond Pesticides network also was a plaintiff.

Federal law tasks the EPA with minimizing the risk of exposure to toxic chemicals in pesticides by, among other things, requiring manufacturers list the names and percentages of each active ingredient on labels.

But the EPA does not make manufacturers list inert ingredients, unless it finds disclosure necessary to protect against “unreasonable risk to humans or the environment.”

Environmentalists submitted a rulemaking petition in 2006, asking the EPA to make companies disclose 371 chemicals in pesticides deemed hazardous under other federal laws, such as the Clean Air Act.

In 2009, the EPA declined to move forward with the rulemaking process.

“These are chemicals EPA has determined are extremely dangerous because of their long-term effects,” plaintiffs’ attorney Yana Garcia said during the Wednesday hearing.

Failing to disclose the ingredients prevents consumers from making informed decisions and makes it harder for medical providers to diagnose and treat the effects of exposure to harmful chemicals, Garcia said.

But Orrick said that though the plaintiffs make persuasive policy arguments, EPA regulations under FIFRA say the agency “may require” disclosure, giving it broad discretion on whether to make manufacturers divulge the ingredients.

“EPA has never found these ingredients hazardous in the FIFRA context,” Department of Justice attorney Debra Carfora told the judge.

Orrick asked Carfora how the agency’s decision to use other means and methods to regulate the ingredients was “better for the environment.”

“I wouldn’t say it’s better,” Carfora said. “I would say this is a very complex issue the EPA has struggled with for 25 years.”

The EPA approached the problem in the best way to use its resources to manage the risks of pesticides, along with other “policy considerations outside the statute,” Carfora said.

But Garcia said the EPA’s effort to encourage voluntary disclosures by manufacturers has “simply not worked,” and that the toxic ingredients clearly meet the standard for “unreasonable risk,” which the EPA is tasked with combating under FIFRA.

“It defies logic that chemicals EPA finds to cause cancer and permanent neurological conditions would not meet this standard,” Garcia said. “EPA has been dragging its feet for decades. We don’t want to be back here in 10 years. We hope EPA can solve this problem now.”

Orrick reiterated that though the plaintiffs make strong policy arguments, he lacks the authority to act on them.

“The EPA is given discretion unless I can find that mandatory duty,” Orrick said. “If I’m stuck on ‘arbitrary and capricious,’ I don’t think I get there.”

Garcia, with Earth Justice in San Francisco, told Courthouse News a year ago that the EPA was “falling down on the job” and that the plaintiffs wanted to give it “a swift kick in the butt.”

In May, U.S. District Judge William Alsup, also in San Francisco, refused to dismiss a lawsuit from beekeepers who claim the EPA illegally broadened exemptions for bee-killing pesticides.

 

To Learn More:

After 8 Years of Delay, EPA Finally Agrees to Test Dangers of Monsanto’s Favorite Pesticide (by Steve Straehley, AllGov)

U.S. Ninth Circuit Reverses EPA’s OK of Pesticide that Is Destroying Honeybees (by Ken Broder, AllGov California)

Federal Court Revokes EPA’s Approval of Insecticide Linked to Collapse of Bee Populations (by Ken Broder and Noel Brinkerhoff, AllGov)

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