June 29, 2016
The Environmental Protection Agency (EPA) is not required to force pesticide companies to disclose “inert” ingredients in their products, even when those products are known to be toxic, carcinogenic or otherwise dangerous, a federal judge recently – and reluctantly – ruled.
The Center for Environmental Health, Physicians for Social Responsibility, and Beyond Pesticides had sued the EPA, claiming that it was violating its responsibilities as mandated by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).
The EPA requires pesticide labels to state the names and percentages of “active ingredients,” the ingredients believed to be responsible for pesticides’ toxic effects. But the agency does not require companies to disclose “inactive” or “inert” ingredients, except to avoid “unreasonable risk to humans or the environment.”
Not actually ‘inert’
The plaintiffs submitted a list of 370 separate “inert” pesticide ingredients that are classified by pesticide manufacturers or the EPA itself as known or suspected of causing cancer, reproductive harm or neurological disorders. They also submitted another 96 ingredients that the EPA has classified as “high priority for testing.”
“What we’re challenging is EPA’s inaction despite a body of evidence,” plaintiffs’ attorney Yana Garcia told Courthouse News when the lawsuit was filed. “Chemicals listed as inert are not inert. Consumers think the inert ingredients are water or other benign substances used to mix the chemicals, but many are carcinogenic and others have acute impacts and still others have impacts that are currently unknown.”
Many of the ingredients on the plaintiffs’ list have been shown to enhance the absorption or inhalation rates of active ingredients, make pesticides more difficult to remove from clothing, and even make active ingredients more likely to pass through protective clothing, such as gloves.
Concealing the presence of chemicals known to be hazardous denies pesticide users the ability to make informed choices, the plaintiffs argued. It also makes it harder for doctors to effectively treat people who have been exposed to pesticides.
The presence of these chemicals doesn’t just affect those who use pesticides, either.
“We are also concerned about pesticide drift, and the effects on bees and other pollinators,” Garcia said.
Flawed law forces judge’s hand
The issue dates back to 1984, when the EPA first began drafting a rule about labeling hazardous ingredients in pesticides. But in 1987, the agency tossed that draft rule out and replaced it with a three tiered list. Only ingredients on the first, most hazardous list, were required to be listed. Notably, none of the ingredients on that list are used in pesticides anymore.
But the list has seen no additions since 1989. So in 2006, the plaintiffs, along with the attorneys general of 14 states, asked the EPA to start drafting a new disclosure rule. The agency took no action, and was later sued over the issue.
“[The EPA] reinitiated rulemaking in 2009 but didn’t complete it, so we filed another lawsuit,” Garcia said. “At that time the EPA reversed course and claimed that people don’t read the labels and don’t care what is in pesticides, so why bother labeling?”
Other absurd arguments made by the EPA – and its lawyers from the Department of Justice – in defense of its position, are that the EPA needs to take into account other “policy considerations outside” FIFRA, and that FIFRA requires the EPA to protect pesticide makers’ trade secrets.
“It remains clear that FIFRA doesn’t let trade secrets trump health. But the EPA is kind of hiding behind this provision in the statute to shirk its responsibility to protect people and the environment [from pesticides],” Garcia said.
When asked by the judge why the EPA’s policy is better for the environment than simply labeling the hazardous ingredients, Department of Justice attorney Debra Carfora said, “I wouldn’t say it’s better. I would say this is a very complex issue.”
U.S. District Judge William Orrick said that he found the plaintiffs’ arguments very convincing from a policy perspective, but that unfortunately FIFRA gives the EPA very wide discretion. Thus, Orrick found himself with no choice but to uphold the legality of the EPA’s decisions.
“The EPA is given discretion unless I can find that mandatory duty,” Orrick said.