There is 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. National Corn Growers v. EPA exemplifies such government overreach.
Under the Federal Food, Drug, and Cosmetic Act, the Environmental Protection Agency establishes limits, or “tolerances,” for pesticide residues on food. If a pesticide residue exceeds an established tolerance it is deemed “unsafe” and the product is removed from interstate commerce—effectively banned from use. The EPA must modify or revoke a tolerance it deems unsafe through a “notice and comment” process. Both the FFDCA and its implementing regulations require the EPA to hold a public evidentiary hearing if any objections raise a “material issue of fact.”
In National Corn Growers, the pesticide carbofuran was registered for use in 1969 by the EPA and has been safely used for pest control for a variety of crops for more than 40 years. Recently, however, the EPA overlooked “material issues of fact” raised by the National Corn Growers and revoked all tolerances for carbofuran without a public hearing. In a decision that gives sole discretion to the EPA to determine the fate of hundreds of thousands of products already in the market, the D.C. Circuit held that courts must defer to the agency. The court declared that differences in scientific studies are insufficient for judicial review, essentially writing “material issue of fact” out of the Act.
Cato joined the Pacific Legal Foundation in filing a brief arguing that Supreme Court review is warranted because the D.C. Circuit undermined the legal requirement for a public hearing under the FFDCA. Moreover, because this case sets a precedent for other regulated products and allows government agencies to unlawfully deprive citizens of their property without adequate access to court review, we argue that the Supreme Court should take this case to: (1) establish the proper standard for review under the FFDCA for a public hearing; (2) curtail abuse of the administrative process; and (3) establish that complete deference is not compatible with a summary-judgment-type proceeding.
The right not to be deprived of one’s property without fair process is a bedrock principle of American jurisprudence. The Court should reinforce this principle and ensure that statutory safeguards intended to protect this right are not ignored.
Thanks to Cato legal associate Caitlyn McCarthy for her help with the brief and with this summary.