Pesticide Firms Seek EPA Intervention

Cindy Skrzycki / Washington Post 27feb01

The "Card memo," issued by White House Chief of Staff Andrew Card on the first day of the Bush administration, has been used to delay the effective date of hundreds of final rules issued by Clinton-era regulators so new agency appointees can review them and decide their fate.

Now some industry groups, searching for ways to delay other Clinton administration actions, are invoking the Card memo as a way for Bush regulators to review non-rules as well.

Witness recent pleas by the pesticide industry to top officials at the Environmental Protection Agency to first delay and then withdraw a court settlement that stipulates how the agency must evaluate and set tolerances for an array of pesticides used on crops.

Groups opposing the settlement said it was crafted in the final days of the Clinton administration without public participation, and they cited the Card memo in urging it be "withdrawn until the President's EPA appointees can review the terms of the Decree and decide whether to proceed with it."

The industry was complaining about the Jan. 19 settlement that the EPA reached with the Natural Resources Defense Council, other environmental groups and farm workers over a suit filed in August 1999.

The groups alleged that the EPA did not meet the deadlines set by Congress for reviewing the toxicity of hundreds of pesticides. They also charged that the EPA failed to make decisions about the riskiest chemicals first and did not develop a program to test certain chemicals to determine if they interfere with the body's endocrine system.

The agreement stipulates that the EPA must evaluate the risks and set tolerances for 11 chemicals that are considered particularly harmful to infants and children. It also must decide on the cumulative risks for four families of chemicals, including organophosphates, commonly used insecticides.

The chemical industry -- backed by groups that don't want pesticides tested on animals -- claimed "the settlement in this case is tantamount to a new regulatory program that would impose numerous substantive obligations and deadlines on EPA and the public."

"This was a rush to judgment," said Douglas Nelson, senior vice president and general counsel of the American Crop Protection Association, which represents manufacturers and formulators of pesticides. He said it is unfair to tie Administrator Christine Todd Whitman's hands "when she doesn't understand what she is committing her agency to do."

The industry and animal rights groups have sued to block the consent decree in the California court where it was filed. They have also asked that the consent decree be published in the Federal Register so it can be commented on, much like a rule. The EPA has to respond to those challenges in early March.

The NRDC's Erik Olson said mounting a legal challenge to a settlement agreement signed by both parties is highly unusual -- especially asking the agency to step away from it.

"It's pretty clear this is not covered by the Card memo," he said. "The pesticide industry is trying to do this under the radar screen. They are trying to undercut the law without trying to change anything in the statute."

EPA spokeswoman Bonnie Piper said Whitman "is not prepared to comment on it because she's still reviewing the settlement."

Because of the ruckus raised by industry, environmental groups are anxiously awaiting word from the EPA. "We think this is Whitman's first big decision," Olson said.

The pesticide manufacturers, who told the EPA they were "flabbergasted" by the settlement, object to what they say are new obligations and schedules set in the consent decree.

"The settlement is a clear attempt by the outgoing Clinton political appointees to create a new regulatory program, impose it on the new administration, and give their perceived allies the power to use the courts to enforce the newly-created requirements," a Feb. 17 letter said.

Under the terms of the settlement, the EPA would have to complete much of the review between now and August. The industry said research the EPA has commissioned would not be completed in time, in some cases, to meet the deadlines.

The NRDC's Olson said the scope of the agreement actually is narrower than what the EPA is required to do by law, and "it will force EPA to make decisions on only a small subset of chemicals."

In a letter to the lawyers representing the pesticide industry and animal rights groups, the Clinton EPA said it was best to go forward with the settlement despite their objections.

"Resolution of this litigation has been a priority for this administration," said Gary Guzy, then general counsel of the EPA, "and I believe we have reached a settlement that is both fair and reasonable, taking into account litigation risk, potential court-imposed schedules, and the future statutory deadlines the EPA faces. That being the case, I think EPA should take all reasonable steps possible to ensure that the litigation is concluded."

The American Crop Protection Association didn't buy any of that. Instead, it told the Bush administration of its objections in hopes of scuttling a settlement it calls "a private deal for implementing an important law, crafted entirely behind closed doors."

In the meantime, the NRDC has warned the Bush administration that backing away from the agreement would have legal and political consequences. Its attorneys view the course that Whitman takes on this case as a test of whether she lives up to her billing as a moderate on environmental issues or whether she will be a captive of industry groups.

"There would be a very real downside risk to the agency of seeking to back out of the settlement," they said in a letter to Whitman last Thursday. They said previous court decisions don't allow parties to renege on a signed settlement. Besides, they warned, if the agreement is thwarted, the EPA will find itself right back in court.