85 F.4th 881
8th Cir.2023Background
- Chlorpyrifos is a widely used insecticide regulated by EPA through crop-specific tolerances and product registrations; statute requires any tolerance left in effect be “safe,” including a tenfold safety margin for infants and children.
- Environmental groups (PANNA/NRDC) petitioned in 2007 to revoke all chlorpyrifos tolerances based on studies suggesting no safe level of early-life exposure; EPA studied the issue for years.
- In 2020 EPA identified 11 “high-benefit” uses that its risk assessments suggested could be safe if other tolerances were revoked or geographically limited, and it solicited comment on retaining some uses.
- The Ninth Circuit ordered EPA to act within 60 days—either revoke all tolerances or modify those that could be certified as safe. Faced with the deadline, EPA revoked all tolerances in 2021 and later defended that choice.
- Agricultural petitioners challenged under the Administrative Procedure Act, arguing EPA acted arbitrarily and capriciously by refusing to consider or implement partial revocation/retention despite prior findings identifying safe limited uses.
- The Eighth Circuit concluded EPA misconstrued its statutory authority and failed to consider important alternatives; the court vacated EPA’s revocation and denial orders and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA had authority/discretion to retain some tolerances rather than revoke all | EPA had statutory authority and prior risk assessments supporting retention of specific high‑benefit uses and should have implemented those modifications | EPA claimed it had to include all existing exposures in the aggregate calculation because registrations remained in effect and it lacked a reasonable basis to assume others would cease | Court held EPA had discretion to consider retaining some tolerances and erred by reflexively rejecting modification as an option |
| Whether EPA could “anticipate” reduced aggregate exposures from its own revocation/modification steps | EPA should have anticipated that revoking other tolerances would reduce aggregate exposure and thus reassessed safety for proposed retained uses | EPA said it could not reasonably anticipate exposure reductions because registrations were still active and registrants had not cancelled uses | Court held EPA must account for the likely effects of its own regulatory actions and misapplied the “anticipated exposures” requirement |
| Whether EPA’s revocation was arbitrary and capricious under the APA for failing to consider reasonable alternatives | EPA failed to consider an important aspect of the problem (partial retention) and relied on a too‑narrow view of its authority | EPA justified its choice by time constraints, practical difficulty of picking winners/losers, and reliance on registrants to act | Court held EPA’s action was arbitrary and capricious for not adequately considering alternatives and remanded for reasoned decisionmaking |
Key Cases Cited
- League of United Latin Am. Citizens v. Regan, 996 F.3d 673 (9th Cir. 2021) (Ninth Circuit mandamus/order requiring EPA to revoke or modify tolerances within a compressed timeframe)
- Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (1983) (arbitrary and capricious standard under the APA)
- Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020) (agency must recognize the full scope of its discretion and provide a reasoned explanation for its choices)
- Nat’l Corn Growers Ass’n v. EPA, 613 F.3d 266 (D.C. Cir. 2010) (agency cannot cancel all tolerances when it has acknowledged some uses are safe and feasible alternatives exist)
- SEC v. Chenery Corp., 332 U.S. 194 (1947) (courts may not accept post hoc rationalizations for agency action)
- Michigan v. EPA, 576 U.S. 743 (2015) (agency cannot rely on post‑hoc explanations to justify a challenged decision)