During his long-overdue testimony before the House Committee on Agriculture in April, EPA Administrator Michael Regan complained about anti-pesticide groups tying up his Agency's resources in lawsuits; but he and his Agency have only themselves to blame. The courts are forcing change because the EPA is clearly inviting them to do it – perpetuating its reputation for lack of scientific integrity in the process.
There is a long and ugly history at EPA of what has been dubbed "sue and settle," or "regulation through litigation," whereby regulators encourage legal challenges by environmental activists to their regulatory decisions. For example, anti-pesticide groups sued the EPA in the notoriously liberal federal Ninth Circuit for allegedly making regulatory decisions without substantial scientific evidence. This would violate EPA's mandate under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). That enables EPA to make concessions to the plaintiffs via settlements and consent decrees without the constraints of rulemaking and the scrutiny of the Office of Management and Budget's Office of Information and Regulatory Affairs.
Trump-era EPA Administrator Scott Pruitt officially ended sue and settle during his tenure with an Agency-wide directive in October 2017, but the Biden administration summarily reversed that directive in March 2022.
The result is that we're back to regulation through litigation, with EPA willingly capitulating to the plaintiff activist groups. EPA often asks the courts for permission to "reevaluate" the accuracy of its work, then uses faulty models, outmoded data, and junk studies to propose and justify new regulations clearly designed to satisfy anti-pesticide activists and placate the courts, under the guise of "following the science."
At least ten agrochemicals are affected by these politically charged courtroom moves, of which atrazine, an important herbicide used on more than half of all U.S. corn acres, is the most notable.
In October 2020, shortly after EPA issued an interim decision on atrazine, anti-pesticide groups sued the Agency, alleging that regulators violated their responsibilities under FIFRA by issuing an interim decision to re-register the herbicide "without substantial evidence."
Instead of defending their decision (which regulators would have done during the previous administration), EPA worked with the court – and plaintiffs – to secure a voluntary remand that allowed them to reevaluate atrazine's proposed maximum allowable concentration of a pesticide in aquatic ecosystems, the "concentration equivalent level of concern" (CE-LOC).
In June 2022, EPA gave activists what they wanted: a proposed reduction in atrazine's CE-LOC from 15 parts per billion (ppb) to an impossibly low 3.4 ppb – not to protect humans (EPA recently found that atrazine is even safer for humans than initially thought), but to protect microscopic water-dwelling organisms called phytoplankton.
EPA also proposed punitive mitigation measures for farmers, such as "vegetative filter strips," strategically planted rows of grass and other vegetation around fields to filter pesticide and fertilizer runoff on farms. This measure alone costs $1.2 million per 5,000 acres. Another mitigation measure, terrace farming, can cost up to $250 per acre.
The "latest science" to support these economically devastating regulatory revisions for farmers? EPA's stock-in-trade: faulty models, outmoded data, and junk science.
We'll start with the junk science.
Of 11 studies that EPA "re-evaluated" before proposing atrazine's new CE-LOC, seven were considered by the EPA's own scientific advisory panel (SAP) to be either "methodologically flawed" or inconsistent with good laboratory practices," and one of them, a 1989 study finding that higher levels of atrazine exposure could negatively affect phytoplankton, should be "excluded from consideration." EPA's SAP flagged it as methodologically flawed due to "solvent bias" after learning that the authors added algae-killing ethanol as a solvent for atrazine in their experimental bags but not to their controls. As my friend, radio personality Lars Larson, observed, this is the kind of irregularity that should be evident to a high-school student.
EPA admitted to using some of the 11 studies to support the revised CE-LOC for atrazine but has not been transparent about the details. Republican House Agricultural Committee members and other concerned stakeholders strongly encouraged Regan to ensure that EPA's SAP has access to more recent and higher-quality atrazine studies in future reviews.
Then there's the Watershed Regressions for Pesticides (WARP) model, which EPA used to justify its proposed interim decision for atrazine. It uses old data and statistics to "predict" the pesticide concentrations in unmonitored streams.
The Weed Science Society of America (WSSA) was so concerned with the WARP model's deficiencies that they took the unusual step of submitting public comments to EPA, calling the model "questionable," "overly conservative," and "not biologically or statistically tested."
Scientists at the U.S. Department of Agriculture also sharply criticized the WARP model, saying it relies on outmoded atrazine usage patterns, old and irrelevant weather data, and consistently inaccurate predictions uncovered by state water monitoring programs, such as Minnesota's.
Atrazine is just one example of EPA using questionable science that panders to activists while shirking their responsibilities to the public and the environment. Similar scenarios are playing out with 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 these critical pesticides.
I wrote a decade ago, "In so many ways, EPA pollutes the cause of transparent, effective government." In a few significant cases, the U.S. Supreme Court found that the EPA acted unconstitutionally. Only last week, the court curtailed the Agency's authority over water pollution. It ruled that the Clean Water Act does not allow the Agency to regulate discharges into some wetlands near bodies of water; the law covers only wetlands "with a continuous surface connection" to those waters. Similarly, last year the court limited the E.P.A.'s power to address climate change under the Clean Air Act.
Many stakeholders are disappointed with EPA's machinations on pesticides. Farmers are enraged by EPA's punitive, indefensible decisions, and, as was evident during Administrator Regan's April congressional testimony, politicians are clearly wise to EPA's chicanery. As committee Chair Glenn Thompson (R-PA) put it during the hearing, "The [agriculture] industry wants "real science, not political science" to guide its decisions. They're unlikely to get it during the Biden administration.
This is an updated and expanded version of an article previously published in the Washington Examiner.
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.