2020 Environmental Real Estate Issues

EPA banned the use of chlorpyrifos on food crops. The Eighth Circuit Court of Appeals vacated the ban and remanded the matter to EPA for further agency proceedings. Specifically, EPA misunderstood “the full scope of its discretion,” which is “[o]ne way an agency can act arbitrarily and capriciously…”

Complete Ban Not the Only Option
Although the administrative and judicial history of chlorpyrifos is complicated, the 8th Circuit determined that in 2021 EPA had two options: it could issue a complete ban on chlorpyrifos, or it could allow a few “high-benefit agricultural uses.”

The 8th Circuit concluded from the administrative record that EPA did not consider allowing some uses because “EPA believed it lacked discretion, or at least acted that way.” EPA ignored evidence in the record showing several “high-benefit agricultural uses that were likely to be safe” according to statutory standards. Because of this evidence, “a partial ban was a real alternative for the EPA.”

Agency Resources Do Not Limit Agency Authority
An advantage of a ban, according to EPA, is that it will allow EPA to avoid allocating its limited resources to the ongoing data collection and other requirements if some uses remained. However, the 8th Circuit said: “EPA should not have reflexively rejected an approach it had the power to adopt, even if it would have required more work.” Matters of policy and practicality do not limit an agency’s statutory authority.

On remand, a complete ban remains an option, but only if EPA recognizes “the full scope of what it can do” and “gives a reasoned explanation for whichever option it chooses.”

To read the opinion http://media.ca8.uscourts.gov/opndir/23/11/221422P.pdf