Northwest Coalition for Alternatives to Pesticides v. U.S. EPA

Sep 19: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 05-75255, 05-76807. The petitioners are two environmental groups challenging the U.S. EPA's establishment of tolerances for seven pesticides used mostly on fruit and vegetable crops. The Appeals Court in a split (2-1) decision granted the petition in part, denied it in part, and remanded the case to the EPA.

The case involves the regulation of pesticides under two statutes: the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the Federal Food, Drug, and Cosmetic Act (FDCA). The Appeals Court notes that in 1996, Congress amended the FDCA by enacting the Food Quality Protection Act (FQPA), Pub. L. No. 104-170, 110 Stat. 1489. One of the key provisions of the FQPA requires the EPA to give special consideration to risks posed to infants and children when establishing pesticide tolerances.

The FQPA directs the EPA to use an additional tenfold margin of safety . . . to take into account potential pre- and post-natal toxicity and completeness of the data with respect to exposure and toxicity to infants and children. EPA may “use a different margin of safety for the pesticide chemical residue only if, on the basis of reliable data, such margin will be safe for infants and children." "Unfortunately," as the Appeals Court points out, the FQPA does not define “reliable data,” and says, "The dispute before us turns on the definition of this term."

Between December 2001 and April 2002, EPA published seven regulations establishing tolerances for the pesticides acetamiprid, fenhexamid, halosulfuron-methyl, isoxadifen-ethyl, mepiquat, pymetrozine, and zetacypermethrin and did not apply the presumptive 10x child safety factor to any of these seven pesticides. EPA reduced the 10x child safety factor to 3x for four of the pesticides (acetamiprid, fenhexamid, isoxadifen-ethyl, and pymetrozine), and did not apply a child safety factor at all for the others.

The majority concluded, "Because the EPA failed to adequately explain the basis for its deviations from the 10x child safety factor for acetamiprid, mepiquat, and pymetrozine, we grant the petitions for review in part and remand to the EPA for further proceedings consistent with this opinion. On all other issues, we deny the petitions for review." The dissenting Justice indicated in part concurring and in part and dissenting, "I agree with the majority’s conclusion that 'the computer modeling used by the EPA to calculate the safety of drinking water was neither contrary to law nor arbitrary and capricious.'" and did not act arbitrarily and capriciously by establishing the pesticide tolerances for acetamiprid, mepiquat, and pymetrozine; but disagreed with the majority’s conclusion that the tolerance regulations for acetamiprid, mepiquat, and pymetrozine must be remanded.

Access the complete opinion (click here).