Farmworkers, public health advocates, and environmentalists have been fighting to ban the neurotoxic pesticide chlorpyrifos for long over a decade. After much delay, the Ninth Circuit determined that the Federal Food, Drug, and Cosmetic Act (FFDCA) required the Environmental Protection Agency (EPA) to ban the use of chlorpyrifos on food crops if it could not make a determination that use on those crops was safe. Unable to make the required safety determination, EPA banned the use of chlorpyrifos on food crops in 2021. However, two years later, the Eighth Circuit set aside EPA’s ban of chlorpyrifos as arbitrary and capricious under the Administrative Procedure Act (APA).
This Note explains how the Eighth Circuit found that EPA’s decision, which was based on the Ninth Circuit’s interpretation of its statutory mandate, was arbitrary and capricious. The Note then argues the reasoning employed by the Eighth Circuit to reach this conclusion was incorrect and pernicious. Finally, by contrasting the approaches of the Eighth and Ninth Circuits to arbitrary and capricious review, the Note aims to differentiate between appropriate judicial scrutiny of agency decision making and inappropriate use of the arbitrary and capricious standard to impose a particular policy choice on an agency.
