Earthjustice attorneys and policy staff discuss recent victories and the fights ahead to keep dangerous chemicals out of our homes and environment.
Taking on toxics.
“Our Healthy Communities Program prioritizes taking on some of the most toxic chemicals and pesticides in the market — through the administrative process, through legal challenges, and through congressional education.”
Harmful chemicals are everywhere in our lives. It’s obvious these chemicals don’t belong in our homes, but powerful corporations have distorted the science to stymie regulatory action. Earthjustice is working at the regional and national level to keep toxic chemicals out of our food and our homes.
Earthjustice Staff Attorney Eve Gartner and Legislative Director for Healthy Communities Andrea Delgado discuss recent victories and the fights ahead to keep these dangerous chemicals out of our environment. This briefing, a conversation on May 10 with Earthjustice supporters, was moderated by Alejandro Dávila Fragoso.
Today, we’re here to talk about toxics. Earthjustice is tackling the issue of toxic chemicals on many fronts. On one hand, we work to ban the harmful chemicals that turn up in our everyday lives — in house paint, drinking water pipes, couches and children’s clothes. At the same time, we work to protect communities and vulnerable populations from toxic pollution, pesticides and chemical disasters.
We’re lucky to be joined by two experts at the heart of those fights. We’re going to give you a closer look at how Earthjustice works to defend against attacks from polluting industries and regulators where it counts the most, in court.
The legal battle against some of the most toxic classes of chemicals.
For many years we’ve been engaged in a battle to protect families across the country from a class of toxic chemicals that are called organohalogens. Organohalogens are a set of chemicals used as flame retardants and they’re used in a lot of household products — they’re used in furniture, in mattresses, in electronics and even in children’s toys.
The way that the flame retardants are added to these products, they don’t actually stay in the products. They migrate out and the chemicals are in a gaseous form and attach to house dust and create a film on other substances in your home. When children are crawling around on the floor, putting things in their mouth, putting their hands in their mouth, they’re eating toxic flame retardant chemicals. Even though most of us as adults don’t think that we’re constantly putting our hands in our mouth, the reality is that we’re touching objects in our home and then we might pick-up something to eat and we also are eating these toxic chemicals.
This class of chemicals, the organohalogens, have been associated with a range of very serious health problems including cancer, infertility, a host of neurological and developmental problems including autism. To make this even more concerning, even though these chemicals are added to products as flame retardants, they actually don’t add meaningful safety benefit and that’s been shown in study after study now.
Several years ago we began an effort to ask the Consumer Products Safety Commission (CPSC) — which is a federal commission whose mandate is to protect people from products in our homes that are toxic or otherwise might cause harm — to ban this entire class of chemicals in the major products in which they’re used.
Our partners and clients have been telling us that the way the chemical industry works is that once there’s a study showing that one chemical was leading to adverse health effects, they would change the chemical around a bit. They’d replace one molecule with a different molecule. They’d replace bromine with chlorine, but it would essentially be the same chemical. Then they would put it in products and people would be exposed for a long time until science caught up and found out that this chemical was also posing these serious health problems. It was not good enough to ban chemicals by individual chemical, we needed to get at this whole class of chemicals that is inherently toxic.
The way that we do this kind of work is we don’t go to the CPSC as Earthjustice. We’re representing our clients and our partners who are representing the affected communities. In order to put in our request to the CPSC to ban these chemicals, we represent the American Academy of Pediatrics — who are very concerned about children’s health effects. We represent the International Association of Firefighters — the leading firefighter union in the country, which might be surprising because you might think firefighters would like flame retardants, but firefighters are very concerned about the use of flame retardants because they understand that the flame retardants don’t actually prevent fires. When fires do happen, and some of these household products like sofas or mattresses burn, the burning chemicals create a toxic mess that the firefighters believe have led to elevated levels of cancer, and rates of cancer among their members.
We represented groups like the firefighters, the pediatricians, consumer groups and others asking the CPSC to ban this toxic class in household products. Also, as part of this effort, we worked with leading scientists around the country to submit supporting statements, testifying to the serious health harm, the exposures, the lack of fire safety benefit.
This was a multi-year process and involved multiple hearings before the Commission, but ultimately we were amazingly successful this past fall, when the Consumer Product Safety Commission voted to grant our petition and to move forward with rules that will actually ban this entire toxic class from these key consumer product categories.
It’s not the end of the story because they now have to adopt these regulations so our work is not done. We are still putting a lot of pressure on them, still bringing people to meet with them, and doing the advocacy that’s needed to get this over the finish line. But this was a huge victory that was made possible by the coalition that we put together, the scientific evidence that we put together, and the arguments that we made about the legal obligation of this commission to protect consumers.
Is the Environmental Protection Agency (EPA) doing its job to protect people from toxic chemical exposure?
In short, ‘no’, they’re not doing their job to protect human health or the environment from toxic chemicals. I think we’re all aware that what’s happening now at the EPA is deeply disturbing. This is an agency that’s designed to protect the environment and human health, but instead it’s been captured by the industries that they’re supposed to be regulating. We have a range of lawsuits now pending against EPA challenging their many attempts to dismantle the safeguards that have been adopted over the last several decades. We’re not going to let them get away with this.
I could give you one example that I think is very telling about what’s happening in this agency. About two years ago, Congress adopted a law that was a major reform of the environmental statute that’s designed to regulate toxic chemicals called the Toxic Substances Control Act. The changes to this law have put us on track to get very meaningful protections from chemicals in a way that we’ve never had in this country. But just as the law was beginning to be implemented, the Trump administration came on and now what they’re doing is trying to create a program that will overlook a lot of the health concerns with chemicals.
One of the key things that this law requires is that EPA begin to do risk assessments of some of the chemicals that people are being exposed to. There are tens of thousands of chemicals that are in commerce in this country and people estimate that only about 200 of these chemicals have ever been adequately tested for safety. A lot of these chemicals have been on the market for decades before there were any laws that gave EPA authority to regulate chemicals. When the laws did get written, EPA basically grandfathered in these chemicals without any kind of safety assessment.
One of the main things the law does is it tells EPA to start actually assessing the safety of the chemicals that people are exposed to. One of the first steps that was required was that EPA had to adopt rules and processes for how it was going to conduct these safety assessments of chemicals. Unfortunately, the Trump administration put somebody — who has a long history as being a high level official in the chemical industry — in charge of writing these rules. So basically the chemical industry was writing the rules to determine how whether or not their chemicals are safe. The rules that were written, basically said that when EPA conducts risk assessments, it can pick and choose which risks it’s going to look at. It can decide to entirely disregard some kinds of exposures and some kinds of risks and it can do that without any basis or explanation whatsoever.
So we have challenged these rules. We represent again a broad range of organizations; the United Steelworkers, the Sierra Club, the Union of Concerned Scientists, community groups like one in New York City called WE ACT for Environmental Justice, and a range of other groups challenging these rules saying that if you do risk evaluation in this way, you’re going to understate the risk and you’re essentially saying this chemical is safe even though we know in our communities and among our members that people are being poisoned by these chemicals.
This is just one example of ways that the Trump administration is really just trying to serve the interests of the chemical industry and not the interests of humans or the environment.
What is the EPA doing or not doing about toxic pesticides and how is Earthjustice responding to this?
For years Earthjustice has been working on behalf of farmworkers, children, health and environmental organizations to push the Environmental Protection Agency to ban chlorpyrifos. In this fight we’re joined by organizations such as the United Farm Workers Union, PCUN — which is an Oregon Farmworker’s Union, Farmworker’s Association of Florida, the Learning Disabilities Association, the National Hispanic Medical Association and many other folks.
Chlorpyrifos is an insecticide that is widely used in U.S. agriculture — on crops such as apples, strawberries, citrus, broccoli, corn, wheat and other foods that families and their children eat on a regular basis. This pesticide is acutely toxic and it has been associated with neurodevelopmental harm in children. Prenatal exposure to chlorpyrifos are associated with lower birthweight, reduced IQ, loss of working memory, attention disorders and delayed motor development. In 2000, EPA banned residential uses of this pesticide because of the harm that it posed to children who crawled onto the carpet or would hug their pets after flea treatments.
We also have to think about what the law requires when it comes to the use of pesticides on our food. In 1996, Congress unanimously passed the Food Quality Protection Act, FQPA for short. This law changed how the EPA registers pesticides and establishes tolerances for what is called the acceptable levels of pesticide residues on our food. The law directs the EPA to ensure, with reasonable certainty, that no harm will result from food, drinking water and other exposures to a pesticide. Specifically, it mandates that the agency considers children’s special sensitivity in exposure to pesticides and to make an explicit determination that the pesticide can be used with a reasonable certainty of no harm to children. For whatever reason the agency cannot make the safety finding, it has to prohibit food residue tolerances of the pesticide. Once it determines acceptable levels of pesticide residue, it needs to also account for the potential harm from prenatal and postnatal exposures. This is a healthy standard for children from food.
When it comes to the science and how it relates to chlorpyrifos this is what we know. In 2014, the EPA released its Human Health Risk Assessment for chlorpyrifos. It found that the extensive body of science correlated this chemical exposure with brain damage to children; and the brain damage occurred at exposures far below EPA’s current regulatory end point, which is based on acute pesticide poisoning risks. They found that in treated drinking water, chlorpyrifos transforms to the more toxic chlorpyrifos oxon via the chlorination process. People who live in highly cropped areas where the land could be treated with this chemical, faced a higher risk of exposure in drinking water. For workers, they found over 200 activities where workers faced a risk of acute poisoning, including mixing and loading various pesticide formulations via airblast applications, aerial applications and when they reenter fields that have been recently sprayed to perform tasks such as thinning, irrigating and hand harvesting.
Given all of these risks, in October 2015, EPA proposed to revoke all food tolerances of chlorpyrifos based on drinking water contamination and opened up a public comment period. Thereafter, the latest science and after they released in 2016, a revised human health risk assessment, it solidified those previous findings. It found that all food exposures exceed base levels, that our children ages one to two years of age are being exposed to 140 times above the safe levels, that there’s no safe level of chlorpyrifos in drinking water, and that for communities that live adjacent to where the pesticide is being sprayed, the toxic drift reaches distances of up to 300 ft. or more from the field edge where the applications occurred. For workers who mix and apply chlorpyrifos, they’re exposed to unsafe levels of the pesticide even when wearing maximum personal protective equipment.
In addition to the scientific evidence, EPA had a court ordered deadline to respond to our petition to ban food uses of chlorpyrifos. The EPA staff had prepared a final rule that would revoke all food tolerances but sadly, on March 29th of last year, Scott Pruitt reversed course. He issued an order denying our petition, claiming that the science was unsettled and that he could wait until October 2022 before making a final decision. This means delayed protections for children, workers, agriculture communities and consumers across the country who continue to be exposed to this pesticide and to consume it in their food and drinking water.
In the aftermath of this decision, on behalf of a dozen health farmworkers and civil rights organizations, we filed objections with the EPA and a lawsuit in the Ninth Circuit petitioning the court to review the Pruitt order — their refusal to ban chlorpyrifos. As of December 20th of last year, the court granted our motion to expedite the case and our attorneys are going to have an oral argument on it on July 9th of this year, so please stay tuned.
The states are stepping up to our challenge, we’re joined by the attorneys general of California, Hawaiʻi, New York, Maryland, Vermont, Washington, Massachusetts and the District of Columbia. In Congress we’re supporting two bills that call for a ban on the use of this pesticide — they are S.1624 in the Senate and H.R.3380 in the House.
How do we protect the people who are growing our food and handling toxic chemicals such as chlorpyrifos?
It’s important to note that in the United States, workers who labor with pesticides cannot rely on the Department of Labor to protect them. They look to the EPA to set occupational health and safety standards to pesticides.
To safeguard the public and the most exposed and vulnerable populations from pesticide related illness, injury and death, two rules exist: the Agricultural Worker Protection Standard and the Certification of Pesticide Applicator’s Rules. They are two sister rules. The Worker Protection Standard applies to workers and pesticide handlers that labor in farms, fields, forests, nurseries, greenhouses and florists. The Certification of Pesticide Applicators Rules governs the training and certification requirements of workers who apply restricted use pesticides in and around our homes, schools, hospitals and industrial establishments. Restricted use pesticides are the most toxic pesticides on the market — the average person can’t go into a store and buy them, you need a special license, training and certification in order to access and apply them. This is why ensuring that folks that are handling those chemicals is so important.
But EPA revised the Agricultural Worker Protection Standard in the fall of 2015 and the Pesticide Applicators Rule in January 2017. Currently Scott Pruitt is attempting to weaken the vital protections that are provided by these two rules but Earthjustice is working with our farmworkers, our clients — we’re fighting back.
These rules are important because farmworkers have one of the highest rates of chemical exposure among U.S. workers — they’re regularly exposed to pesticides throughout their workday and their children are particularly at risk because if your parents are farmworkers, pesticides, or even if you reside near agricultural areas, pesticides cling to your skin and clothing, long after workers return home. The act of hugging your child when you come home can put your children at risk of long term health impacts from that exposure. Children who are playing in nearby fields can also become at risk of breathing in the chemicals or touching or ingesting pesticides on food or in their homes and yards.
Sadly, on December 19th and 21st of 2017, Scott Pruitt ignored the importance of protecting children and the workers from these exposures. He announced that he wants to reconsider three vital protections that are provided by these rules. The Minimum Age Provision which prohibits employers from requiring minors under the age of 18 to apply pesticides or to perform what are called Early Entry Tasks, which means returning to areas that have been recently sprayed, before the time that is safe to do so.
The second protection that Scott Pruitt wants to weaken is the right of a farmworker to designate a representative that can access information about the chemicals that they’re exposed to at work. This provision is crucially important because in many cases, farmworkers have limited English proficiency or may be afraid to ask for information about the chemicals that they’re exposed to, so they may need to designate a third party, be it a family member or a colleague, a community advocate or a lawyer to be able to access that information on their behalf if they’re made ill, need medical attention or just generally want to have an awareness about the chemical that they’re exposed to so that they can protect themselves and their children. It’s important to note that workers in other industries have had the right to a designated representative for decades, and we believe that farmworkers deserve nothing less than that.
Last, but not least, Scott Pruitt wants to weaken what is called the Application Exclusion Zones, which merely requires the precaution that if someone is applying pesticides and see a worker or people around pesticide application equipment, they must try to avoid spraying them by suspending the application and resuming the application after the person has left the area. Scott Pruitt wants to weaken that, essentially saying if you see someone, you don’t have to take any precautions to prevent them from being directly sprayed. We think this is horrifying since drift is one of the leading causes of worker and bystander poisonings across the country.
On to the Certification of Pesticide Applicators Rule: Scott Pruitt seeks to revise only one provision in this rule and what’s horrendous about this is that he also wants to revise the minimum age protection that prevents children from applying restricted use pesticides. What the Pesticide Applicators Rule requires is that if you’re a commercial or a private applicator, you have to be at least 18 years old in order to apply these restricted use pesticides.
The only exception that exists is for if you are the immediate family member of one of these pesticide applicator businesses, then you must be at a minimum 16 years old, but you must be directly supervised by your family member. It’s family labor that has this minor extension, but if it’s hired labor, you cannot make them apply restricted use pesticide if they’re a minor. At Earthjustice, we’ve been rallying our client base, our partners, reaching out to advocates — including folks that are on this call — to ensure that you’re reaching out to your members of Congress to highlight how important these rules are, and why it’s so important that we’re protecting the most exposed and vulnerable from these chemicals.
Whether or not you are a farmworker or a pesticide applicator, whether these workers are adequately trained and protected is inextricably linked to our health and safety. While they may be the most exposed to pesticides, if they don’t know what chemicals they’re being exposed to, if they don’t know how harmful they are, and they’re being tasked with applying it in our lawn, inside our homes, near our schools, on our food, then we are all unprotected.
What Earthjustice is doing right now to protect consumers from toxic substances that are added directly to food or end up in food through the food packaging.
I’ve been very focused recently on chemical additives that are put in processed foods as either preservatives, or flavorings, or to supposedly improve the texture of the food. There’s a real problem in this country with processed foods, canned foods and other processed foods containing food additive chemicals.
Recently, we were shocked when the Food and Drug Administration (FDA) — the agency that’s charged with ensuring the safety of our food — adopted a regulation to implement a law that’s called the Food Additives Amendment Act. The Food Additives Amendment Act has been around for a long time and requires that FDA consider the safety, and actually investigate and approve food additives before they can be used in foods. Before a chemical can be added to your food, FDA has to analyze it and find whether or not it’s safe.
But there’s a huge loophole in the statute and the loophole says that chemical substances that are Generally Recognized as Safe don’t have to go through this FDA review process. It’s bad enough if you assume that FDA is the one that’s making this judgment but recently they adopted a rule that allows the manufacturers of these food additive chemicals to make their own decision about whether the substances — that they’re making for profit — meet this Generally Recognized as Safe criteria.
So chemical manufacturers can make their own decision about the safety of their product and if they decide that it’s safe, they can begin adding it to processed food without notifying FDA whatsoever. FDA has no opportunity to review this decision. And the rule allows this supposed safety decision, by these self-interested chemical manufacturers, that something is Generally Recognized as Safe to be based on unpublished studies corroborated by unpublished studies. There’s no conflict of interest limitation so the people who are making these safety determinations, could be the ones who stand to profit millions or hundreds of millions of dollars from the sale of the substance. This is very troubling and we’ve filed a lawsuit challenging this and it’s pending in court right now.
We also recently filed another lawsuit challenging FDA, because years ago some of our clients had asked FDA to withdraw approval for seven chemical substances that are added to food as artificial flavoring. Since the time they were approved by FDA, it’s been found that these substances all have some carcinogenic effect — some cancer causing effect. Our clients asked FDA several years ago to withdraw the approval of these essentially carcinogenic food flavorings and FDA has not responded to our request so we filed litigation against FDA for its refusal to respond to our petition.
We have other cases related to chemicals that are not directly added to food, but that are used in plastic food packaging. The chemicals are essentially plasticizers of a class of chemicals called phthalates. These phthalates chemicals leach out of the plastic packaging and get absorbed by the food, especially fatty foods that tend to be more absorbent like cheese or meat.
Again, the evidence is mounting that this entire class of phthalates chemicals cause health harms — interfere with reproduction, they’re endocrine disrupters they alter the entire hormonal system. So we’ve asked FDA to withdraw approval of this whole class of chemicals from food packaging. They have said no, they’re not going to do that so we’re beginning to design the strategy for how to address this through litigation.
How are we consuming these food additives?
We’re consuming these substances in lots of ways. Looking specifically at the group that are found to be Generally Recognized as Safe, which we refer to as GRAS — the scary thing is, because the chemical manufacturers don’t have to notify FDA that they’ve made a finding that a chemical is GRAS, there’s no record of what substances are Generally Recognized as Safe. You could be eating them and there would be no record that some of the chemicals in the product have not gone through the normal FDA review process.
But we do know that one food product — these new vegetarian burgers called the Impossible Burger, served in a lot of high end burger chain restaurants for vegetarians — contains substances that are GRAS. A lot of foods with artificial mint flavors also have GRAS. A lot of the artificial flavors and extracts have not gone through the normal FDA approval and are in this GRAS category.
If the chemicals have not proven to be effective flame retardants then why does the industry still use them?
One thing to understand when we’re talking about the industry in the context of flame retardants is there’s really two industries. There are the chemical manufacturers that make the flame retardants and then there are the manufacturers of the products that the flame retardants are added to — furniture manufacturers or children’s toy manufacturers. I think it’s fairly obvious that the chemical industry has an incentive to create a demand for these products, but then why do the manufacturers of the actual furniture, the toys — why are they adding flame retardants?
Some of this is historical. For furniture, in particular, some states, especially California, years ago adopted flammability standards that they thought were going to increase safety. This was in the era where more people smoked and there was a lot of fires that started when people dropped a cigarette on their sofa or fell asleep in bed smoking. The foam in furniture and mattresses is very flammable, it’s a petroleum product and can burn very quickly.
The state adopted these flammability standards, thinking they were protecting people from fires due to smoking. The flammability standard essentially required the addition of chemicals; which came about through the chemical industry lobbying that they had the answer to people being injured in fires started in furniture or mattresses. It really wasn’t until much later that we realized that the chemicals weren’t effective in doing this.
There was a fascinating exposé a few years ago in the Chicago Tribune showing a very clear documented link between the tobacco industry and the flame retardant industry where the tobacco industry and the flame retardant industry used the same lobbyists and pressed for these kinds of flammability standards as a way to promote the safety of smoking — basically telling people you’re safe smoking in bed, you’re safe smoking in your home because these chemicals added to your furniture will keep you safe.
It was only many years later that people understood the toxicity of the chemicals and that the chemicals didn’t significantly slow the spread of the fires at all. But by that time these flammability standards were already in place. We were very involved in changing the flammability standard in California back in 2012 and 2013 and through a lot of our legal analysis, California changed its legal standard. The chemical industry challenged that so we got involved in that lawsuit and represented the California Professional Firefighters and other groups in California to defend the new flammability standard in California, which does not require use of chemicals.
So there’s been an unholy alliance between chemical manufacturers, the tobacco industry, and disinformation to manufacturers to get them to add these chemicals thinking that they were going to be protecting consumers. It’s been a slow process to get the correct story out there.
How is this information — that thousands of chemicals now permeate our world and our bodies — being disseminated to others?
We don’t have a good way of doing this and it’s something that I think we need to do more work on. One thing I failed to say earlier about this decision by the Consumer Products Safety Commission to grant our petition and move forward with the ban on organohalogen flame retardants, is that at the same time that they said they were going to adopt this ban, they also acknowledged that that was going to be a slow process and they were very concerned about the fact that people are being poisoned in the interim, so they issued a guidance document. The guidance document basically urged manufacturers to stop using these chemicals, urged retailers and consumers to look for products that don’t include these chemicals, and specifically noted that the health impacts were particularly acute for pregnant women and children.
We’ve been really trying to get public health officials and state agencies, local agencies to post this guidance document — which is essentially a warning to consumers — on their websites. And we’ve been working with some of our partners around the country who are state-based groups to reach out to their local officials asking them to post this on their website. We have this information, which I as a parent, am really happy that I can take steps to protect my family. If I were a parent that didn’t have this information, that would be bad, so I would love to find ways to get this information out there more. I agree that state and local health departments should be alerting consumers to these harms but so far we haven’t had a lot of traction with this.
What legal actions are Earthjustice engaging in with the Worker Protection Standards?
On these rules, right now what Scott Pruitt has done is announced that he’s going to reconsider the protection for children, the right to representatives, and the protections from drift. In August, we’re hearing that there’s going to be an official proposal that will be open for public comment and at that point we’re going to be urging many folks on this call, and our allies across the country to weigh in on that process to stand strong against those provisions.
As it relates to legal action on the Certification of Pesticide Applicators Rule, the EPA finalized a rule in January 2017 and it had a March 6th, 2017 effective date in compliance deadlines for the specific implementation of actions over a period of time but EPA illegally delayed the effective date of the pesticide applicators rule through a series of actions, largely without notice and comment. So on behalf of farmworker organizations that would be most directly impacted by the delay of the rule and the training that is associated with the protection from restricted use pesticides, we bought a lawsuit. A district court recently vacated the delay rules and declared that the Certified Pesticide Applicators Rule be in effect.
As I mentioned, EPA is intending to move forward on weakening the substance of vital protections that are provided by these rules so we’re staying in tuned. We’re going to be weighing in during the public commenting period and hoping others will join us as well. Once the rule is finalized, depending on the substance of it, we have warned the agency to expect to see us in court if what they’re doing is illegal and not protective of human health and the environment.
How is the general public affected when the Certification of Pesticide Applicators Rule is not implemented or delayed?
It’s important to note that this rule was revised after a series of misapplications led to deaths, permanent disabilities and serious injuries across the country. Pesticide misuse has led to serious harm for hundreds of homeowners and their families, and has resulted in the tragic deaths of children. So if these workers are not adequately protected, people can be severely harmed. Our families are in threat of illness, injury and death because these are highly acutely toxic pesticides where even small doses could kill someone. From our homes to children’s schools and agricultural operations across the country, ensuring that these protections are preserved for workers is crucial to safeguarding our families.
As I mentioned previously, restricted use pesticides are the most toxic pesticides in the market and they’re called as such because without added restrictions, it has the potential to cause unreasonable adverse effects to the environment and injuries to applicators or bystanders. It can only be used by an individual that’s adequately certified and trained or is under the direct supervision of a certified applicator.
So you can imagine what we’re leaving at stake if we’re not ensuring that these workers are trained and protected, so that they know the harm and the risks that are associated with these pesticides, so that they can not only protect themselves but others whenever they’re coming into contact, applying or leaving the chemicals behind after they leave our homes or the sites where they have applied them.
Are there sources where people can find information about toxic chemicals and pesticides that consumers come in contact with?
I’d highly suggest that folks go to earthjustice.org and click on the Healthy Communities Program. Our Healthy Communities Program prioritizes taking on some of the most toxic chemicals and pesticides in the market. When you go to our website, you will see the ones that we’re prioritizing for action right now, either through the administrative process, through legal challenges, or through congressional education. If for whatever reason a particular chemical that you’re interested in is not there, don’t hesitate to contact us.
Can we bring a class action lawsuit directly against Scott Pruitt since he’s the one making the decisions to keep harmful pesticides in use?
A lot of our lawsuits are effectively class action lawsuits. Because we’re representing membership organizations that have hundreds, thousands, or millions of members — when we’re suing Scott Pruitt for failing to protect human health and failing to protect the environment, we’re doing it on behalf of all of the members of the organizations that are the plaintiffs in our case. We don’t call them class action lawsuits, but they really are on behalf of broad classes of affected people like families with kids with learning disabilities or steelworkers. Our cases are on behalf of thousands and thousands of people around the country who are being impacted by these horrible policies.
What more can our supporters do to make their voices heard?
At Earthjustice, a lot of what we do is we submit comments to agencies: EPA, the Department of Interior, the FDA. When they have a proposal to deregulate, to undermine science or to take an action that’s concerning, there’s often comment periods — opportunities for the public to weigh in. Those comment periods are really important because if they end up finalizing the action, as often happens in the Pruitt and Trump administration, we are going to court and we’re challenging what they’ve done. In this kind of litigation, what gets submitted to the agency during the comment period has to be the basis for the lawsuit.
For example, when Andrea was talking about EPA’s decision not to ban this very toxic pesticide called chlorpyrifos, they have to have comment periods about their decisions. We need to put into the record all of the reasons why chlorpyrifos should be banned and what the impacts of that are. When we end up filing lawsuits about this, we rely exclusively on what was submitted to the agency during the comment period — it’s called the Administrative Record. The court can only look at documents that are in the Administrative Record to decide if the agency did something improper.
Submitting comments during a comment period, is not just something that makes you feel good or lets you take out your fury at this administration, but it really is substantively important. It’s what we rely on later when we file our lawsuits. It’s critical — many of you are on our mailing list and you get requests from us periodically, maybe more than periodically in this administration — to take action by sending a comment to an agency, commenting on these terrible proposals. If you’re not already on our mailing list, you can go to our website and you can sign up to get our alerts.
When we send out these alerts to you, we’ll provide model language for you to submit to the agency but if you have any specific information that you think might be helpful, please amplify on our general message. The general message is important, but if you know something specifically about this, it would be so valuable for you to share that with the agency. Again, we are relying on your comments when we file litigation.
I’d encourage folks to go to earthjustice.org/action. I know that folks in this day and age are getting a lot of action alerts: act out, send this, send now. We really mean it when we send it. It’s so vitally important for record building and in some cases folks go as far as including their own personal stories about how they’ve been affected. We take note of that and we make sure that that’s highlighted. Our Communications Team gathers all of it and sends it into the docket before the public commenting deadline closes. All of this is handled with a lot of care and attention. It’s also important when you’re taking action, because members of Congress pay attention as well and they’re more likely to cosponsor a bill, or to write a letter, or to do something positive — to be supportive of our administrative or legal actions, when they see that there’s an outpour of public support.
So on every front we thank you for taking the time to open those emails to read them. Please take them seriously, take action. If you are not currently signed up, do sign up to do so at earthjustice.org/action.
This text is edited and condensed from the audio recording.
It may not be in its final form and may be updated or revised in the future.
“It is my privilege to speak for these wild places and wild creatures in the federal court system.”