UPDATE 1-U.S. EPA wins new chance to argue against pesticide ban

The Trump administration has persuaded a U.S. appeals court to reconsider its recent decision ordering the Environmental Protection Agency to ban the widely-used pesticide chlorpyrifos, which critics say can harm children and farmers. In an order on Wednesday, the 9th U.S. Circuit Court of Appeals said it will again review former EPA administrator Scott Pruitt's March 2017 refusal to ban chlorpyrifos for use on food crops such as fruits, vegetables and nuts.

Pruitt's ruling reversed a 2015 Obama administration plan to extend a 2000 ban on the pesticide that had covered most household settings. The appeals court had, in a 2-1 decision last Aug. 9, directed the EPA to ban chlorpyrifos within 60 days.

It cited the agency's failure to consider, or debunk, "scientific evidence" associating the pesticide with low birth rates, impaired mental development, attention and behavior problems, and other damage to children. Wednesday's order means an 11-judge appeals court panel will reconsider the case.

Chlorpyrifos, developed as a nerve gas in World War Two, has been used commercially in the United States since 1965. Groups that challenged Pruitt's ruling included the Natural Resources Defense Council and the United Farm Workers.

"EPA's own scientists have said for more than two years that chlorpyrifos is harmful, particularly to children," said Patti Goldman, a lawyer for Earthjustice representing the groups, in a statement. "Any delay to ban this toxic chemical is a tragedy." If the 9th Circuit upholds Pruitt's original ruling, it will be a win for President Donald Trump, who along with other Republicans has long criticized what is widely viewed as one of the more liberal federal appeals courts.

In seeking a rehearing, the EPA said the appeals court lacked jurisdiction to review Pruitt's ruling, and otherwise should have simply directed him to reconsider the evidence rather than order a ban. The EPA is now overseen by acting administrator Andrew Wheeler.

A spokeswoman said the agency is pleased the case will be reheard, and that federal rules allowing the pesticide's use "can continue, as permitted by state law," during the appeals process. Judge Jed Rakoff, who normally sits on the federal district court in Manhattan, wrote the Aug. 9 decision.

Circuit Judge Ferdinand Fernandez dissented, saying the court lacked jurisdiction. The case is League of United Latin American Citizens et al v New York et al, 9th U.S. Circuit Court of Appeals, No. 17-71636. (Reporting by Jonathan Stempel in New York Editing by Sonya Hepinstall and Susan Thomas)