The Administration also issued a “regulatory freeze” memo instructing that rules sent to the Office of the Federal Register for publication by the Trump Administration not be published until a Biden-appointed department or agency head reviews and approves the rule. The memo also directs department and agency heads to consider postponing rules that have been published in the Federal Register but that have not yet taken effect to seek additional public comment on issues of fact, law, and policy raised by the rule.
Environmental rules and policies the new Administration announced its intent to review include:
- An EPA order denying an administrative challenge to the continued registration of chlorpyrifos, a widely used crop protection tool approved for use on numerous US food crops. While environmental groups have long claimed links between exposure to chlorpyrifos at levels below the current regulatory standard and neurodevelopmental impacts, EPA found the scientific evidence urged in support of the administrative challenge insufficient. EPA was sued by environmental groups over its decision in the Ninth Circuit.
- An EPA rule proposing changes to the Agricultural Worker Protection Standard to clarify and simplify application exclusion zone requirements. The rule has been challenged in court by environmental groups claiming it is not sufficiently protective.
- An EPA rule requiring greater transparency of scientific data used to inform significant regulatory decisions concerning pesticides that was proposed in April 2018 but finalized in the final days of the Trump administration. In an early win for the Biden Administration, a federal judge recently granted EPA’s unopposed motion to remand and vacate the rule after environmental groups challenged it. Env’t Def. Fund, et al. v. EPA, et al., No. 21-cv-00003 (D. Mont. Feb. 1. 2021), ECF No. 38.
How the new Administration will prioritize and approach its review of these and other Trump Administration rules and policies, including a proposed rule on Plant-Incorporated Protectants derived from newer technologies, and draft guidance on biostimulants is still unclear. Some finalized rules may be rolled back through litigation, as with the science transparency rule noted above. In other pending litigations, EPA has sought extensions of court deadlines to assess its positions, including in multiple lawsuits brought challenging the 2020 registrations of dicamba products approved for “over-the-top” use on dicamba-tolerant soybeans and cotton. However, other lawsuits challenging pesticide products have progressed with no outward change in EPA’s position, including the litigation concerning EPA’s action with respect to chlorpyrifos.
Some rules could be overturned using the Congressional Review Act (CRA). The CRA sets forth a fast-track procedure that allows Congress to overturn rules adopted by federal agencies in the last sixty legislative days (here, any rules adopted after August 21, 2020).
Most regulatory rollbacks will take time, however, with changes likely to be implemented through formal Agency notice and comment procedures. EPA has already extended the comment period on a December 2020 proposed interim registration review decision (PID) on chlorpyrifos, which would allow continued use of the product, in order to allow the Biden Administration time to review that decision. At his recent confirmation hearing, EPA Administrator Regan vowed to make decisions concerning chlorpyrifos “driven by science” and “driven by the rule of law.”
The possibility of pesticide-related rule changes by the new Administration creates considerable uncertainty for industry, growers, and other stakeholders. For most EPA regulations and policies under scrutiny, there is likely to be a period of delay while new appointees get up to speed and the Agency’s agenda and priorities are more clearly mapped out.