Pest Control for Pesky Evidence

Should courts be outlawed from thwarting outlaws?

The Environmental Protection Agency has acted to unilaterally ban a pesticide in use for decades. Writing for the Cato Institute’s blog, Ilya Shapiro notes that the agency’s move exemplifies “a growing trend among federal agencies and courts to incrementally expand the government’s enforcement power by adopting statutory interpretations that go beyond their plain meaning and intent.”

The pesticide is carbofuran, used to protect crops since 1969. What is the evidence that carbofuran poses a hitherto un-​comprehended threat to human well-​being? Federal law requires EPA to provide for a “notice and comment” period before altering an established legal threshold for pesticide residues on food. If “material issues of fact” are then raised, the agency must conduct a public evidentiary hearing. National Corn Growers indeed raised “material issues of fact” regarding the alleged hazards of carbofuran. So an evidentiary hearing is mandatory.

The DC Circuit ruled, however, that scientific disagreements are insufficient to trigger judicial review and that decisions about new residue tolerances should be left entirely to the EPA. If upheld, the decision means the agency could determine all by itself whether its regulatory actions are consistent with law. Even when they obviously aren’t.

Along with the National Corn Growers and other industry groups, the Cato Institute and Pacific Legal Foundation are challenging this latest assault on property rights and the rule of law — an assault you might even call a pestilence.

This is Common Sense. I’m Paul Jacob.