Bergeson & Campbell, P.C. serves small, medium, and large pesticide product registrants and other stakeholders in the agricultural and biocidal sectors, in virtually every aspect of pesticide law, policy, science, and regulation.

By Lisa M. Campbell, Timothy D. Backstrom, and James V. Aidala

On June 22, 2017, a complaint was filed against the U.S. Environmental Protection Agency (EPA) by American Oversight, a nonprofit organization (Plaintiff), in the United States District Court for the District of Columbia.  The complaint asks the court to compel EPA to provide information in response to a Freedom of Information Act (FOIA) request submitted by the Plaintiff on April 11, 2017, “seeking communications between certain individuals at each agency and certain outside entities related to chlorpyrifos or other pesticides.”  The records requested included:   (1) a copy of any decision memoranda and attachments associated with the decision to deny the petition to ban chlorpyrifos; and (2) all communications between certain individuals involved with EPA’s Administration as well as certain transition team members, and the following listed entities:

  • Any agricultural or other trade group with an interest in pesticides, including but not limited to CropLife, the American Farm Bureau, the National Corn Growers, or the Oklahoma Farm Bureau;
  • Any pesticide manufacturer or anyone acting on behalf of a pesticide manufacturer, including but not limited to Dow Chemical or Dow AgroSciences;
  • Any member of Congress or anyone acting on behalf of a member of Congress (including both personal and committee staff) regarding agricultural issues or pesticides; and
  • Any think tanks, including but not limited to the Heritage Foundation, regarding agricultural issues or pesticides.

The complaint asserts that although EPA responded to the FOIA request by stating that it was “proceeding with the search,” EPA “has not taken any additional actions,” and as of June 14, 2017, had not provided any of the requested records.  Plaintiff claims that EPA has failed to comply with the applicable time-limit provisions of FOIA and the complaint contains two Counts:  Count I:  Failure to Conduct Adequate Search for Responsive Records; and Count II:  Wrongful Witholding of Non-Exempt Records.  Based on these alleged violations, Plaintiff asks the court to order EPA to conduct a search reasonably calculated to uncover all records responsive to the FOIA request; order EPA to produce any and all non-exempt records responsive to the FOIA request and indexes justifying the withholding of any responsive records withheld under claim of exemption; and enjoin EPA from continuing to withhold any and all non-exempt records responsive to the FOIA request.

This Plaintiff appears to be seeking the responsive records to demonstrate that some kind of untoward or inappropriate communication occurred between the incoming Administration and outside groups leading to the chlorpyrifos petition response that allowed continued use of chlorpyrifos products, pending the completion of the registration review process.  Given the record that the Obama Administration constructed to propose the revocation of the chlorpyrifos tolerances, environmental advocates were disappointed that the new EPA leadership decided to postpone a decision.  EPA in its petition response articulated its rationale for its decision, but the Plaintiff may believe that these documents would likely show the “politics” behind the decision.  This is somewhat ironic since many stakeholders in the agricultural user community are convinced that the initial proposal to revoke chlorpyrifos tolerances issued during the prior Administration was itself an example of “politics over science.”

In this instance, it does not appear that EPA has made any determination yet whether any of the requested records are exempt from disclosure.  Moreover, the Plaintiff appears to be seeking decision memoranda and communications between EPA employees and other parties outside of EPA; this fact could affect EPA’s consideration of the applicability of the “deliberative process” privilege set forth in FOIA Exemption 5 to try to withhold any of the requested records, an issue that could be controversial. 

The Plaintiffs contend that EPA has not met the mandatory time limits applicable to a FOIA request.  This is a common problem, particularly when multiple individuals must participate in the search for responsive records, the records requested are voluminous, or exempt material like confidential commercial information must be redacted from otherwise responsive records.  Unless EPA ultimately determines that some records can and should be withheld, and Plaintiff disagrees, this suit may become moot in the event that EPA produces the requested documents before the case can be adjudicated.  Regardless of the outcome, Plaintiff has succeeded in keeping EPA’s controversial chlorpyrifos decision in the spotlight.