During his long-overdue testimony before the House Committee on Agriculture in April, Environmental Protection Agency Administrator Michael Regan complained about anti-pesticide groups tying up his agency's resources via the courts, but he and his agency only have themselves to blame. The courts are forcing change largely because EPA invites lawsuits — perpetuating its reputation for a lack of scientific integrity in the process.
For years, anti-pesticide groups have sued EPA in the famously liberal 9th Circuit for allegedly making registration decisions without substantial scientific evidence, which would violate EPA's mandate under the Federal Insecticide, Fungicide, and Rodenticide Act .
The EPA has been sympathetic to the very activist groups that were suing it, even requesting permission from the courts to "reevaluate" the accuracy of its own work.
The EPA then uses faulty models, outdated data, and junk studies to propose and justify new regulations clearly designed to satisfy anti-pesticide activists, placate the courts, and play to President Joe Biden's liberal base — all under the guise of "following the science."
Atrazine, an herbicide used on more than half of America's corn acres, is the most notable victim of the EPA's machinations. In October 2020, anti-pesticide groups sued the EPA, alleging that the agency violated its responsibilities under FIFRA by issuing an interim decision to reregister atrazine "without substantial evidence."
Instead of defending its decision, which the EPA would have done during the Trump administration , regulators worked with the court, and plaintiffs, to secure a voluntary remand that allowed them to reevaluate atrazine's proposed "concentration equivalent level of concern," or CE-LOC, the maximum allowable concentration of a pesticide in aquatic ecosystems. In June 2022, the EPA gave activists what they wanted: a proposed reduction in atrazine's CE-LOC from 15 parts per billion to an impossibly low 3.4 ppb. This was not to protect humans — EPA recently found that atrazine is even safer for humans than originally thought — but to protect microscopic water-dwelling organisms called phytoplankton.
The EPA also proposed expensive, punitive mitigation measures for farmers to reduce atrazine runoff from farmland.
And the latest "science" to support these economically devastating regulatory revisions? Once again: faulty models, outdated data, and junk science.
First, the junk science. Of 11 studies EPA "reevaluated" before proposing atrazine's new CE-LOC, seven were considered by the EPA's external scientific advisory panel, or SAP, as either "methodologically flawed" or "inconsistent with good laboratory practices." Among them was a 1989 study showing that atrazine could negatively affect phytoplankton. The SAP recommended the EPA exclude it from consideration after learning that researchers added algae-killing ethanol as an atrazine solvent in their plastic experimental bags but not their controls.
Then there's the Watershed Regressions for Pesticides model, which the EPA used to "predict" atrazine concentrations in unmonitored streams as justification for its proposed interim decision. The Weed Science Society of America was so concerned about the WARP model that it took the unusual step of publicly criticizing it as "questionable," "overly conservative," and "not biologically or statistically tested."
Department of Agriculture scientists also sharply criticized it for relying on outmoded atrazine usage patterns, old and irrelevant weather data, and consistently inaccurate predictions uncovered by state water monitoring programs.
Regan's EPA is using the same tricks, the toxic combination of flawed science and court decisions, with other pesticides such as paraquat and sulfoxaflor . And in the cases of chlorpyrifos and some dicamba formulations, Regan's EPA successfully leveraged the courts and poor science to ban them.
As I wrote a decade ago, "In so many ways, EPA pollutes the cause of transparent, effective government." The scientific community and industry remain disappointed with the EPA's shoddy work. Farmers are enraged by the EPA's punitive, indefensible decisions, and, as was evident during Regan's recent congressional testimony, politicians are clearly wise to the EPA's chicanery. I'm not betting on change during the remainder of the Biden administration.
Henry I. Miller, a physician and molecular biologist, is the Glenn Swogger distinguished fellow at the American Council on Science and Health. He was the founding director of the FDA's Office of Biotechnology, and he had the misfortune to work with EPA on interagency panels during his years in the government.