Bush-Appointed Judge Finds EPA Broke the Law by Delaying Pesticide Rules
August in North Carolina means tobacco harvest time. Once a year, the wide, flat leaves carpeting acres of farmland in the eastern part of the state begin to turn from green to yellow, signaling their ripeness. Growers need many hands to cut the leaves from thick stalks and bundle them into trucks, and those hands largely belong to migrant workers who make a living by following harvests across the country.
It was at a tobacco field in 2010 where a dozen workers harvesting leaves in the early morning began to suffer nausea, headaches, dizziness, and difficulty breathing. Soon several of the workers became too ill to stand, much less work. Several workers asked the crew foreman to transport them to the nearest medical facility, but he denied them.
Two workers later said they became sick after being sprayed with pesticides. Tobacco growers use some of the most toxic pesticides used today, such the now-banned methyl bromide and chlorpyrifos, an insecticide associated with birth defects and other illnesses. Studies have shown that such pesticides can cause cancer, inhibited neurological development in children, and other health issues. The Environmental Protection Agency (EPA) classifies them as “restricted use pesticides,” meaning pesticides so dangerous that workers need to be trained and certified before applying them—though there’s nothing to prevent them from working alongside freshly-treated fields. The owner of the tobacco farm fired several workers when they were too sick to work the next day. The workers eventually got in touch with Legal Aid of North Carolina, a nonprofit law firm with a unit dedicated to helping farmworkers. Attorneys asked the grower what chemicals the workers had been exposed to, but were told the grower didn’t have to provide them any information. The organization eventually filed a complaint with the North Carolina Department of Agriculture alleging violations of the Environmental Protection Agency’s Worker Protection Standard.
The Worker Protection Standard and an accompanying rule titled Certification for Pesticide Applicators (certification rule) are the two main ways EPA fulfills its legal mandate to protect workers from pesticide exposure. Each year around 20,000 farmworkers suffer some level of pesticide poisoning, according to the Centers for Disease Control and Prevention.
Farmworker advocates have long pushed the EPA to strengthen the rules, pointing to cases like that of the North Carolina workers and to studies showing the negative effects of pesticides on human health. Advocates appeared victorious when the Obama Administration finalized updates to the rules in late 2016 after nearly ten years of input from growers, workers, and industry organizations.
But the changes were opposed by a segment of the agricultural industry that fiercely opposes government regulation. These opponents gained a more sympathetic audience with the election of Donald Trump and the confirmation of former Oklahoma attorney general Scott Pruitt as EPA Administrator. Pruitt immediately put the brakes on the new rules and said EPA would revisit their more controversial parts. A federal judge ruled on March 21 that the agency violated administrative law and put farmworkers at risk by delaying the rules.
“Plaintiffs have suffered an injury in fact because EPA’s delay of the Pesticide Rule’s effective date has created a threat that implementation of the Pesticide Rule, and the regulatory protections it provides, will likewise be delayed,” said the ruling judge, Jeffrey S. White, a judge in the Northern California court originally appointed by George W. Bush.
On the surface, the ongoing fight over the Worker Protection Standard and certification rule may look like just another struggle between pro- and anti-regulatory liberals and conservatives. But documents obtained and interviews conducted by POGO demonstrate how Pruitt is trying to circumvent the regulatory process to please his anti-government sympathizers, violating public interest laws in the process.
“The Most Toxic Pesticides in the Country”
The Federal Insecticide, Fungicide and Rodenticide Act charges EPA with protecting people and the environment from pesticides’ adverse effects. To accomplish this, EPA enacted the Worker Protection Standard in 1974 and the certification rule in 1995. The EPA estimates that two million workers are covered by the Worker Protection Standard.
Medical professionals and advocates for agricultural workers have long argued that updating the rules is a matter of life and death. Farmworkers suffer more chemical-related injuries than any workforce in the country, according to the nonprofit advocacy group Farmworker Justice. Measuring the extent of the problem is difficult because so many workers face linguistic and legal barriers to asking for help, making them easy to exploit. For example, many are undocumented immigrants, so fear deportation and reprisal from employers. Three different studies on pesticide poisoning reporting found that pesticide exposure is dramatically underreported because of these barriers, and because pesticide poisoning symptoms often mimic those of other illnesses.
The updates to the Worker Protection Standard, formally proposed in 2014, made several changes. The most contentious would establish a minimum age of 18 for pesticide handlers; create zones around areas recently treated with pesticides that people cannot enter; and allow workers sickened by pesticides to appoint representatives who can obtain information from employers, a standard right in other industries. The EPA followed up with proposed changes to the certification rule in 2015, including to strengthen training to address take-home exposure—where workers subject people in their homes to pesticides through skin and clothing—and require the people applicating the pesticides to read English in order to understand instructions and warnings on the pesticide labels.
Pushback on the proposed changes followed a familiar pattern in regulatory battles. Opponents, led by the American Farm Bureau Federation and National Association of State Departments of Agriculture (NASDA), asserted that EPA had dramatically underestimated the costs to state regulatory agencies and to growers, and said the changes raised “federalism” issues. Some state regulators threatened to eliminate their pesticide certification programs entirely, thereby shifting the cost of implementing the rules to the federal government. Opponents also questioned the science behind the EPA’s pesticide poisoning numbers.
EPA had already made several concessions to gain opponents’ support—such as exempting farm owners’ immediate family from the rule changes and increasing the number of years before recertification is required from three to five—and opponents pressed for further delay, with NASDA petitioning EPA several times to extend implementation dates. Neither NASDA nor the Farm Bureau responded to requests for comment.
Then on November 8, 2016, Donald Trump was elected on a platform advocating deregulation and the easing of government rules affecting industry. The day of his inauguration, the White House issued a memo directing agencies to postpone any regulations issued by the previous administration that hadn’t yet taken effect. Later that month, President Trump issued two related executive orders: One prohibiting agencies from imposing any rules with associated costs—even if they also provided benefits—unless the agencies offset the cost by eliminating another rule, and the other directing agencies to create task forces focused on rooting out unnecessary regulations.
In February, Pruitt was confirmed as EPA chief. Various agriculture companies, industry associations, and trade groups sought and gained an early audience with him, including the Farm Bureau and NASDA, which are heavily supported by the largest agriculture corporations in the country. Industry giants Monsanto, Syngenta, and CropLife America—a trade association representing pesticide manufacturers and distributors—all contributed to both organizations and lobbied the EPA on pesticide regulations.
A series of federal register notices followed over the next four months after Pruitt was confirmed delaying the effective date for changes to the certification rule. These notices coincided with several meetings between Pruitt and opponents of the rules, some of whom had formed relationships with Pruitt during his years in Oklahoma.
On March 1, according to EPA records released through the Freedom of Information Act (FOIA), Pruitt and his senior political advisors, including Don Benton (a former Washington state senator who was serving as a “Senior White House Advisor” in the EPA), met with members of the Farm Bureau’s Washington state chapter. The Farm Bureau chapter relayed that it was opposed to reducing the number of pesticides, wanted a “reasonable approach to regulating” the pesticide chlorpyrifos, and raised concerns about the Worker Protection Standard (p. 36).
In one internal EPA exchange (p. 530), Pruitt’s chief of staff Ryan Jackson emailed another political appointee on March 7 that he “scared” the EPA’s career staff regarding the issue of chlorpyrifos. The New York Times wrote that this email “had made clear the direction that the political staff wanted to go.”
Weeks later, Pruitt took action to overrule EPA career scientists who had recommended banning chlorpyrifos in agricultural use. Since 2000, chlorpyrifos has been banned from use inside homes because studies found it posed a health risk to children, including a correlation with lower I.Q.s.
The EPA announced Pruitt’s decision in a March 29, 2017, press release, and one week later issued a companion release with quotes supporting the decision from groups including NASDA and the Farm Bureau. NASDA published a press release praising the decision the same day—and, according to the EPA records released through FOIA (pg. 22), sent its release to EPA officials it planned to meet with the following day.
The day after his announcement on chlorpyrifos, Pruitt met with CropLife America president and CEO Jay Vroom, NASDA CEO Barbara Glenn, and with other industry association representatives such as an executive vice president from the Biotechnology Innovation Organization. The meeting agenda, which was originally obtained by The Intercept through FOIA, included a discussion of “actions taken already to correct recent regulatory overreach,” including the chlorpyrifos decision, and to “identify priority recommendations that could further ease the burden to farmers, and agricultural business and technology providers.” One of those recommendations: continue to “delay and amend the recently released final rules on [sic] related to pesticide handling, workers and training. Implementation should be suspended and the rules should be revisited and revised before re-proposal.”
On May 5, more than 50 farmworkers in Bakersfield, California, were sickened by chlorpyrifos wafting from a nearby field.
A week later, Pruitt took action responsive to CropLife America, NASDA, and allied trade associations’ requests and announced a one-year delay to the certification rule.
“In order to achieve both environmental protection and economic prosperity, we must give the regulated community, which includes farmers and ranchers, adequate time to come into compliance with regulations,” said Pruitt in a press release about the decision.
NASDA’s Glenn was also quoted in the EPA’s press release. “While we are supportive of the improved final rule released in January, States are facing a range of on-going logistical, resource, and capacity challenges. These challenges are amplified as they also implement other recent EPA requirements, such as the Worker Protection Standard,” she said.
Though the Worker Protection Standard appeared to have escaped delay, EPA announced last December a new rulemaking process to revise the three most contested elements of the rule: the age minimum, the application exclusion zone, and a designated representative for sick workers. The rest of the rule, EPA said, would go into effect on the original date in January 2017.
One week earlier, an EPA official had written Senator Tom Udall (D-CO) that the “agency had learned through discussions with NASDA” that the states needed help implementing the Worker Protection Standard. In the December 18 letter, EPA Acting Principal Deputy Administrator Charlotte Bertrand said EPA had decided to revise three parts of the rule after talking with state departments of agriculture (ThinkProgress first reported on the letter). As further evidence of the need for delay, the letter claimed that at a recent meeting of the Pesticide Program Dialogue Committee—a federal advisory committee of 50 members representing states, grower groups, industry, farmworker advocates, and other stakeholders—members lacked “agreement on a practical way to alleviate stakeholder concerns.” Yet the transcript of the committee’s November 2017 meeting shows members agreed that the rule revisions should go forward—even controversial elements such as the minimum age requirement and application exclusion zone.
Seven members of the committee responded with a letter to Bertrand stating that “the summary of the Dialogue Committee meeting in the letter to Udall is inaccurate,” noting that the EPA had followed up the letter with an email admitting that opinions favoring state determination of age minimums came from public comments filed, not the Dialogue Committee meeting.
“We do not have an expectation that the EPA’s decisions will always correspond with our specific points of view, yet we do expect our views to be heard and we certainly do not expect them to be ignored or mischaracterized simply because they do not fit into a pre-determined political narrative,” the signatories wrote.
Also present at the November meeting was Nancy Beck, Pruitt’s appointee to the Office of Chemical Safety and Pollution Prevention, which oversees EPA’s programs on pesticides and toxic chemicals. Beck’s conflicts of interest resulting from her previous employment with the American Chemistry Council led House Democrats to request an investigation by the EPA’s Inspector General. Beck was joined by Bertrand; Elizabeth Bennett, Pruitt’s appointee to the Office of Congressional Relations and a former coal utility lobbyist who has also drawn Congressional concern; and Jeff Sands, Pruitt’s agricultural advisor and a former director of government relations for Syngenta.
The Dialogue Committee meeting wasn’t the only thing Bertrand’s letter mischaracterized. The Federal Register notice on the Worker Protection Standard revisions revealed that new training materials, including updated content on issues such as take-home exposure, would be withheld pending the new rule. Since states don’t have to start using the materials until five months after they are announced in the Federal Register, the delay presents significant dangers to farmworkers, advocates say.
“What’s happening now is not just benign: [EPA is] holding this new safety content in training hostage for no reason whatsoever,” Earthjustice attorney Eve Gartner told POGO. “That means farmworkers and their families aren’t getting information they need. It’s problematic and deeply cynical,” Gartner said.
“It’s a Strategy”
Pruitt has rolled back dozens of environmental regulations since taking office. Congress established a law to prevent the executive branch from waving regulations away with the swipe of a pen, however. The Administrative Procedure Act requires agencies to hold a minimum 30-day public comment period before amending or repealing a rule. This requirement can only be skipped if “impracticable, unnecessary or contrary to the public interest.” To do otherwise is considered “arbitrary“ and “capricious,” and a violation of the law.
Five organizations, including United Farm Workers and the Pesticide Action Network, filed a lawsuit in July 2017 arguing that Pruitt’s EPA violated the Act by repeatedly delaying the certification rule with little or no notice or public comment. Twice the public was given no opportunity to comment, and once it was given only four days to comment; the Act requires a minimum comment period of 30 days. The EPA never justified eliminating the comment period or even delaying the rule, the lawsuit alleged.
A federal district court judge agreed. On March 21, White issued the ruling that found EPA had violated the Act.
“By repeatedly delaying the effective date of the Pesticide Rule, EPA engaged in substantive rulemaking and was thus required to comply with the requirements of the APA,” said White in the ruling. Noting that the rules have a three-year implementation process, White added that “EPA’s very purpose in delaying the effective date was to prevent States and other regulated entities from making changes to comply with the Pesticide Rule while the rule was being reviewed for potential revision or repeal. Over one-third of the contemplated three year implementation period has now been lost to delay. If implementation of the Pesticide Rule is delayed, Plaintiffs’ members will continue to be exposed to [pesticide] dangers and will not benefit from the more stringent regulations provided by the Pesticide Rule,” he wrote.
The EPA told POGO it is reviewing the judge’s decision.
“He is breaking the law,” Lisa Heinzerling, a professor at Georgetown University who specializes in environmental and regulatory law, told POGO, referring to Pruitt. “But it’s administrative law, so no one’s going to jail.”
In its response to questions from Senator Debbie Stabenow (D-MI) at a March 2017 hearing on pesticide regulation, EPA defended the lack of public comment by claiming the commentary filed on the original rule in 2015 sufficed, and that beginning a new comment period would have allowed the rule to go into effect while the agency was reviewing it, causing “unnecessary confusion and disruption.”
Yet confusion is exactly what the EPA’s multiple delays of the rules have created, experts say.
The effect is to “create confusion and lack of clarity,” said William Andreen, a professor of environmental and administrative law at the University of Alabama and former EPA regional counsel, in an interview with POGO. This lack of clarity creates “a de facto delay because the states don’t know what’s going on,” Farmworker Justice attorney Virginia Ruiz told us.
“Information on any changes considered by the EPA would be explained in a proposed rule when published for public comment,” said an EPA spokesman in a statement to POGO. “EPA will consider all comments received.”
Pruitt has employed other tactics to drag out and weaken the Worker Protection Standard and certification rule that draw from the same playbook he has used to halt other environmental regulations. These include emphasizing costs to industry over public benefit. The EPA’s analysis of the certification rule changes estimated a cost of $31.3 million per year, or $40-$60 per applicator. The benefits to the public, however, came to $26.3 million to $48.7 million per year assuming that half of pesticide poisonings go unreported, though the number of unreported incidents—and benefits resulting from prevention—are likely much higher for the reasons described earlier. In its justifications for delaying the rules, the EPA said it needed more time to examine the concerns of organizations like NASDA who claim that adhering to the new rules will generate costs such as travel that will expand the burden on states and businesses far beyond EPA’s estimates.
But the benefits to human health and the environment still exceed the costs, advocates say. Yesenia Cuello moved to North Carolina as a child so her mother could work in the tobacco fields. She joined her mother in the fields when she was 14. She said in an interview with POGO that when she and her siblings went into the fields early in the morning “you can smell the chemicals, but we didn’t know [it was dangerous]—we had no training, and they never asked our ages.” The EPA proposed the minimum age of 16 for pesticide handlers at the recommendation of the National Institute for Occupational Safety and Health and its own Children’s Health Protection Advisory Committee, which found that teenagers’ lack of experience and judgment raised the risk of accidents. The EPA estimated the cost of implementing the 16-year-old age minimum at only $2 per agricultural establishment per year—what many would call a worthwhile expenditure at even twice that amount.
“Having worked with youth when I was a teenager, I see how they are,” said Cuello, who now gives teenage farmworkers safety training with the nonprofit group NC Fields. “Teenagers go through that age when they get careless because they think nothing can happen to them—that’s why it’s dangerous.”
Another common tactic for discouraging regulations is cutting funding for implementation and enforcement. History has shown if you don’t pay the policemen, crime will go unpunished, yet the White House’s budget proposals for both and fiscal year 2019 slashed funding for EPA’s Office of Enforcement and Compliance Assurance and the state grants that fund enforcement at the state level. (Congress rejected the cuts in the omnibus spending bill passed March 23.)
Cutting state funding contradicts Pruitt’s avowed philosophy of “cooperative federalism.” Pruitt defines this as an equal partnership between the federal government and state governments to implement and enforce laws. Since the federal government gives states funding to enforce those laws, however, critics say cutting that funding will eviscerate environmental protections.
As with all environmental laws, state governments are responsible for implementation at the local level, with federal laws and rules acting as a floor. Some states have adopted changes that are even more stringent than the new federal ones (see sidebar), while some states have feeble enforcement track records.
“It’s a strategy—announcing you’re going to make people at the state level responsible for making these rules work when you know those people are reluctant to dive fully into implementing them,” said William Jordan, a 40-year veteran of the EPA who recently retired as Deputy Director of the agency’s Office of Pesticide Programs.
Few states are more reluctant to bend to federal environmental regulations than Oklahoma, where Pruitt made his name as an anti-regulatory crusader as the state’s attorney general.
"There’s No Underlying Theme Except Pleasing Industry”
Scott Pruitt became a one-man political machine in Oklahoma, where he moved in 1990 from his home state of Kentucky to attend law school. After graduating and practicing law in a private firm for five years, Pruitt won a seat in the state senate in 1998, where he would remain for eight years. During that time he ran two unsuccessful campaigns, one in 2001 for the U.S. House of Representatives and the other in 2006 for lieutenant governor. In 2010, he won a close race to become Oklahoma’s attorney general, and retained the position unchallenged in the 2014 election.
As attorney general, Pruitt became renowned for his scorched-earth legal tactics against the EPA, which he accused of overstepping its legislative boundaries and imposing excessive burdens on state economies and industries. Pruitt initiated or joined 14 lawsuits against the EPA alongside companies he now must regulate—and from which he solicited money as a political candidate.
His years of fights against the EPA and other federal agencies, coupled with political fundraising, forged strong relationships between Pruitt and aggressive corporate opponents of federal regulation. The most well-documented of these is with the energy sector, which has pumped more than $350,000 into Pruitt’s campaigns since 2002. Those relationships have followed him to Washington: since his February 2017 confirmation as EPA administrator, Pruitt has advanced several energy sector priorities, from stalling the Clean Power Plan to lifting limits on oil and gas emissions.
He’s also very close to the agriculture industry. Agriculture-related companies donated nearly $100,000 to Pruitt over his political career, and the Oklahoma Farm Bureau accounted for $10,000 of that. Pruitt joined a 2010 lawsuit filed against EPA by the American Farm Bureau to overturn federal pollution limits for the Chesapeake Bay (waste and chemicals from farms are a major source of that pollution).
Pruitt did not forget his agricultural supporters after taking over the EPA. In addition to the Washington Farm Bureau, the Oklahoma Farm Bureau was one of the first groups Pruitt met with after his March 2017 confirmation, and later that year he met with the American Farm Bureau Federation, Ag America Caucus Leadership, Agriculture Roundtable, and the farm bureaus of Mississippi and Tennessee. Pruitt was also featured speaker at NASDA’s Winter Policy Conference last January.
Pruitt’s background in using the law to throw a wrench in the federal regulatory system serves the Administration’s broad deregulatory agenda very well, legal experts say.
“The approach across the administration is as simple as trying to stop as much of the regulatory activity from the Obama administration as they can—it’s no more complicated than that,” says Heinzerling. “There’s no underlying theme except pleasing industry.”
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