The Supreme Court decided today not to take up the question of whether U.S. EPA followed the correct procedure in effectively banning a pesticide that had been in use for years.
EPA banned carbofuran, which had been used on corn, potatoes and sunflowers, in 2009 after it was linked to water contamination and health problems suffered by farm workers.
By opting not to hear the case, National Corn Growers Association v. EPA, the Supreme Court left EPA's decision intact.
Industry groups, led by the National Corn Growers Association, had appealed the decision, claiming that EPA should have held an evidentiary hearing before reaching its conclusion.
The U.S. Circuit Court of Appeals for the District of Columbia upheld EPA's decision last year, saying there was no need for a hearing on that occasion.
The court did vacate the agency's related decision to revoke "import tolerances" for the pesticide, which is the maximum residue limit of the pesticide allowed on imported crops (E&ENews PM, July 23).
The legal question raised by the challengers was whether the Federal Food, Drug and Cosmetic Act required EPA to hold a hearing because the carbofuran decision was a major agency action and a party had objected to the proposed decision based on "disputed material factual issues."
As the petitioners conceded in their brief, "EPA has never held such a hearing."
The court of appeals ruling "essentially eviscerates" the right to a hearing, wrote lawyer Gregory Garre of the Latham & Wakins law firm.
In response, acting Solicitor General Neal Katyal wrote in the government's brief that the case would be a "poor vehicle" to examine the requirements for a hearing because EPA's refusal to reconsider its decision was based largely on the petitioners' "failures to comply with standard rulemaking procedural requirements."
EPA's rejection of the hearing request was "fully consistent with all applicable statutory and regulatory requirements," Katyal added.
A spokesman at the National Corn Growers Association could not immediately be reached for comment.