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Case 1:20-cv-10642-LJL Document 1 Filed 12/16/20 Page 1 of 33
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`Plaintiffs,
`
`v.
`
`STATE OF NEW YORK, STATE OF
`CALIFORNIA, STATE OF ILLINOIS,
`STATE OF MARYLAND, and STATE
`OF MINNESOTA,
`
`
`
`
`
`UNITED STATES ENVIRONMENTAL
`PROTECTION AGENCY; and
`ANDREW WHEELER, in his official
`capacity as Administrator of the United
`States Environmental Protection Agency,
`
`
`
`
`
`
`
`
`20 Civ. 10642
`
`
`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
`
`
`
`
`
`
`
`
`
`
`Defendants.
`
`
`
`INTRODUCTION
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`1.
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`This lawsuit challenges a U.S. Environmental Protection Agency regulation that
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`needlessly increases the risk of exposure to harmful pesticides by permitting pesticide handlers
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`to continue pesticide applications despite the presence of farmworkers or other persons within
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`the area immediately surrounding the application equipment.
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`2.
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`Federal law requires EPA to take steps to protect humans and the environment
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`from unreasonable adverse effects of pesticides. Consistent with this obligation, EPA has
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`published regulations known as the “Worker Protection Standard” intended to reduce the risk of
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`illness and injury resulting from exposure to pesticides. See 40 C.F.R. Part 170.
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`3.
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`In 2015, for the first time in nearly twenty-five years, EPA updated and
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`strengthened its Worker Protection Standard “to prevent unreasonable adverse effects from
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`exposure to pesticides among agricultural workers and pesticide handlers, vulnerable groups
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`

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`Case 1:20-cv-10642-LJL Document 1 Filed 12/16/20 Page 2 of 33
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`(such as minority or low-income populations, child farmworkers, and farmworker families) and
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`other persons who may be on or near agricultural establishments.” Pesticides; Agricultural
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`Worker Protection Standard Revisions, 80 Fed. Reg. 67,496, 67,496 (Nov. 2, 2015) (the “2015
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`Rule”).
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`4.
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`Among the measures included in the 2015 Rule to address exposure to pesticides,
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`and to reduce the chronic and acute health impacts associated with those exposures, was the
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`creation of an “Application Exclusion Zone,” referring to the area around pesticide application
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`equipment that must be free of all persons other than trained and equipped handlers during
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`pesticide applications. Id. at 67,496-97, 67,521–25, 67,564.
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`5.
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`But in October 2020, EPA issued a rule that significantly curtails the protections
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`of the Application Exclusion Zone, threatening the health and safety of farmworkers, their
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`families, and others. Pesticides; Agricultural Worker Protection Standard; Revision of the
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`Application Exclusion Zone Requirements, 85 Fed. Reg. 68,760 (Oct. 30, 2020) (the “Final
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`Rule”) (appended as Ex. 1).
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`6.
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`In promulgating the Final Rule, EPA departed from the agency’s recent prior
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`position without adequate justification or factual support; relied on an analysis of costs and
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`benefits that fails to justify any changes to the Application Exclusion Zone; made a decision that
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`runs counter to the evidence before the agency, including with regard to the ability of Plaintiffs
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`and other States to comply with the 2015 Rule; and failed entirely to identify and address the
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`disproportionately high and adverse effects of this policy change on minority and low-income
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`populations.
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`7.
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`The Final Rule’s unjustified and unwarranted changes to the Application
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`Exclusion Zone will increase the risk of pesticide exposure among farmworkers, their families,
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`2
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`Case 1:20-cv-10642-LJL Document 1 Filed 12/16/20 Page 3 of 33
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`and others, and will injure Plaintiffs’ sovereign, quasi-sovereign, economic, and proprietary
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`interests.
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`8.
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`Plaintiffs the State of New York, State of California, State of Illinois, State of
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`Maryland, and State of Minnesota therefore bring this action to vacate the Final Rule and enjoin
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`its implementation because it is arbitrary, capricious, an abuse of discretion, and otherwise not in
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`accordance with law under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A);
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`and because it exceeds and is contrary to Defendants’ statutory jurisdiction, authority, and
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`limitations in violation of the APA, 5 U.S.C. § 706(2)(C).
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`JURISDICTION AND VENUE
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`9.
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`The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
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`2201(a). Jurisdiction is also proper under the judicial review provisions of the APA, 5 U.S.C.
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`§ 702.
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`10.
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`Declaratory and injunctive relief is sought consistent with 5 U.S.C. § 706 and as
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`authorized in 28 U.S.C. §§ 2201 and 2202.
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`11.
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`Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b)(2) and (e)(1).
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`Defendants are United States agencies or officers sued in their official capacities. Plaintiff the
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`State of New York is a resident of this judicial district, and a substantial part of the events or
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`omissions giving rise to this Complaint occurred and are continuing to occur within the Southern
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`District of New York.
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`PARTIES
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`12.
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`Plaintiff the State of New York, represented by and through its Attorney General,
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`is a sovereign state of the United States of America. The Attorney General is New York State’s
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`chief law enforcement officer and is authorized under N.Y. Executive Law § 63 to pursue this
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`action.
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`3
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`13.
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`Plaintiff the State of California, by and through Attorney General Xavier Becerra,
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`is a sovereign state of the United States of America. As California’s Chief Law Officer, the
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`Attorney General has the authority to file civil actions to protect public rights and interests and
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`promote the health and welfare of Californians. Cal. Const. art. V, § 13. This challenge is
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`brought pursuant to the Attorney General’s independent constitutional, statutory, and common
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`law authority to represent the public interest.
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`14.
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`Plaintiff the State of Illinois brings this action by and through Attorney General
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`Kwame Raoul. The Attorney General is the chief legal officer of the State of Illinois, Ill. Const.,
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`art. V, § 15, and “has the prerogative of conducting legal affairs for the State,” Envt’l Prot.
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`Agency v. Pollution Control Bd., 372 N.E.2d 50, 51 (Ill. Sup. Ct. 1977). He has common law
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`authority to represent the People of the State of Illinois and “an obligation to represent the
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`interests of the People so as to ensure a healthful environment for all the citizens of the State.”
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`People v. NL Indus., 604 N.E.2d 349, 358 (Ill. Sup. Ct. 1992).
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`15.
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`Plaintiff the State of Maryland, represented by its Attorney General, is a sovereign
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`state of the United States of America. The Attorney General has general charge of the legal
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`business of the State of Maryland, Md. Code Ann., State Gov’t § 6-106, and is authorized to
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`investigate, commence, and prosecute or defend any civil or criminal suit or action that is based
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`on the federal government’s action or inaction that threatens the public interest and welfare of
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`the residents of the State with respect to, among other things, protecting the health of the
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`residents of the State or protecting the natural resources and environment of the State, id. § 6-
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`106.1(b).
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`16.
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`Plaintiff the State of Minnesota, represented by and through its Attorney General,
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`is a sovereign state of the United States of America. Attorney General Keith Ellison is the chief
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`4
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`legal officer of the State of Minnesota and his powers and duties include filing lawsuits in federal
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`court on behalf of the State of Minnesota. Minn. Stat. § 8.01.
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`17.
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`Plaintiffs are aggrieved by Defendants’ conduct and have standing to bring this
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`action because the Final Rule harms Plaintiffs’ sovereign, quasi-sovereign, economic, and
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`proprietary interests and will continue to cause injury until the Final Rule is invalidated.
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`18.
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`Defendant EPA is an agency within the executive branch of the United States
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`government and is an agency within the meaning of 5 U.S.C. § 552(f). EPA promulgated the
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`Final Rule and is responsible for its enforcement.
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`19.
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`Defendant Andrew Wheeler is the current Administrator of EPA and is
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`responsible for the operations of the agency. He is sued in his official capacity.
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`I.
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`Statutory and regulatory background.
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`ALLEGATIONS
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`20.
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`The Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C.
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`§§ 136–136y, requires EPA to take steps to protect humans and the environment from
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`unreasonable adverse effects of pesticides.
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`21.
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`Consistent with this obligation, EPA has published regulations intended to reduce
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`the risk of illness and injury resulting from occupational exposure to pesticides while working on
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`farms or in forests, nurseries, and greenhouses. See 40 C.F.R. Part 170 (the “Worker Protection
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`Standard”).
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`5
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`22.
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`The Worker Protection Standard is “primarily intended to reduce the risks of
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`illness or injury to workers1 and handlers2 resulting from occupational exposures to pesticides
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`used in the production of agricultural plants on agricultural establishments.” 40 C.F.R.
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`§ 170.301.
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`23.
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`In 2015, EPA updated and strengthened the Worker Protection Standard to better
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`protect against unreasonable adverse effects from exposure to pesticides among agricultural
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`workers, pesticide handlers, vulnerable groups, and other persons near agricultural
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`establishments. 80 Fed. Reg. at 67,496.
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`24.
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`The 2015 Rule established interrelated exposure-reduction measures to address
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`the continuing exposure of workers, handlers, and bystanders to pesticide applications, and to
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`reduce acute and chronic health impacts associated with these exposures.
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`25.
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`Among these measures, the Worker Protection Standard established requirements
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`to be followed by agricultural employers, commercial pesticide handler employers, and handlers
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`to “take measures to protect workers and other persons during pesticide applications.” Id.
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`26.
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`As relevant to this lawsuit, the 2015 Rule included the creation of an Application
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`Exclusion Zone, referring to the area around pesticide application equipment that must be free of
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`all persons other than appropriately trained and equipped handlers during pesticide applications.
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`80 Fed. Reg. at 67,496-97, 67,521–25, 67,564.
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`1 The Worker Protection Standard defines a “worker” as “any person, including a self-employed
`person, who is employed and performs activities directly relating to the production of
`agricultural plants on an agricultural establishment.” 40 C.F.R. § 170.305.
`2 A “handler” is any person “who is employed by an agricultural employer or commercial
`pesticide handler employer” and who performs activities such as “mixing, loading, or applying
`pesticides,” “disposing of pesticides,” “handling opened containers of pesticides,” or “assisting
`with the application of pesticides.” 40 C.F.R. § 170.305.
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`6
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`27.
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`The Application Exclusion Zone is a circle surrounding the location of the
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`application equipment that moves as the application equipment moves, and whose radius varies
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`from 25 to 100 feet depending on the method of application. Id. at 67,523, 67,564; see also 40
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`C.F.R. § 170.405(a)(1).
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`28.
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`The 2015 Rule established several requirements with respect to the Application
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`Exclusion Zone, including (1) that agricultural employers not allow any workers or other persons
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`inside the Application Exclusion Zone within the boundaries of the establishment until the
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`application is complete, see 40 C.F.R. § 170.405(a)(2), and (2) that handlers performing a
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`pesticide application immediately suspend the application if any workers or other persons
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`(excluding trained and equipped handlers) are present within the Application Exclusion Zone,
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`including where the Application Exclusion Zone may extend beyond the boundaries of the
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`establishment, see 40 C.F.R. § 170.505(b).
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`29.
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`In other words, the 2015 Rule creates both a “keep out” requirement, 40 C.F.R.
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`§ 170.405(a)(2), obligating employers to keep workers and other persons out of the Application
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`Exclusion Zone within the boundaries of the establishment; and a “suspend application”
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`requirement, id. § 170.505(b), obligating handlers to suspend pesticide application if any person
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`is within the Application Exclusion Zone, including if the Application Exclusion Zone extends
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`beyond the boundaries of the establishment.
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`30. When creating these requirements, EPA acknowledged that the pre-2015 Worker
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`Protection Standard already included a “do not contact” requirement—that is, a requirement that
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`“employers and handlers . . . assure that no pesticide is applied so as to contact, either directly or
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`through drift, any worker or other person, other than an appropriately trained and equipped
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`handler.” 80 Fed. Reg. at 67,523.
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`7
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`31.
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`EPA nonetheless determined that the creation of an Application Exclusion Zone,
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`and the requirement to suspend application when workers or other persons come within the
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`Application Exclusion Zone during pesticide application, were critical additional steps necessary
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`to protect human health: “EPA has identified a need to supplement the ‘do not contact’
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`performance standard because exposure to drift or direct spray events still happen despite the ‘do
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`not contact’ requirement.” Id. at 67,524.
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`32.
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`EPA further concluded that requiring applicators to suspend activities even when
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`the Application Exclusion Zone extends beyond the boundaries of the agricultural establishment
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`was warranted for several reasons, including that it was necessary to protect against harmful
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`worker and bystander exposure, and because the existing “do not contact” requirement likewise
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`extended beyond the boundaries of the establishment. See id.
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`II.
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`Farms, pesticide use, and farmworkers in the Plaintiff States.
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`33.
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`Agriculture is a critical component of the economy in each of the Plaintiff States,
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`and each Plaintiff’s agricultural sector employs tens of thousands of farmworkers each year.
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`34.
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`Nearly one-quarter of New York, or 7.2 million acres, is covered by farms. Of
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`this farmland, 59 percent is dedicated to crops. As of 2012, New York was home to more than
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`35,500 farms. See N.Y. State Comptroller, The Importance of Agriculture to the New York State
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`Economy, at 1 (Mar. 2015).3
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`35.
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`Agriculture occurs in every region of New York State. For example, New York’s
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`Hudson Valley Region (including Dutchess, Orange, Putnam, Rockland, Sullivan, Ulster, and
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`Westchester counties) has approximately 2,400 farms occupying 340,000 acres of farmland. See
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`id. at 4.
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`3 Available at http://www.osc.state.ny.us/reports/economic/importance_agriculture_ny.pdf.
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`8
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`36.
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`New York ranks in the top ten, by sales, for a number of agricultural
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`commodities. For example, New York ranks second nationwide in apple production, third for
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`grapes, and fourth for pears. Id. at 2. The State is also one of the top ten producers nationwide
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`of cherries, peaches, strawberries and for many types of vegetables, including cabbage,
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`cauliflower, cucumbers, onions, pumpkins, beans, squash, sweet corn, and tomatoes. Id.
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`37.
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`The New York State Comptroller’s Office reported that, during 2012, nearly
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`61,000 individuals were employed as hired farm labor. Id.
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`38.
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`The New York State Department of Labor cites the agriculture industry in New
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`York as employing 40,000 to 80,000 farmworkers every year, including domestic, guest worker,
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`year-round, and migrant and seasonal farmworkers. See N.Y. State Dep’t of Labor, State
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`Monitor Advocate—New York.4
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`39.
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`In New York, the Worker Protection Standard regulations are enforced by the
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`New York State Department of Environmental Conservation (“NYSDEC”), which informs
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`regulated entities of their obligations under the regulations, conducts routine inspections of
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`regulated entities, and investigates complaints of violations of those regulations.
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`40.
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`According to NYSDEC, the total amount of pesticides reported as applied by
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`commercial applicators in 2013 was over 2.9 million gallons of liquids and 24.3 million pounds
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`of solids. See N.Y. State Dep’t of Envtl. Conservation, Final Annual Report For New York State
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`Pesticide Sales and Applications 2013, at 1 (2013).5 In the same year, over 910,000 gallons of
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`liquid pesticides and more than 3.9 million pounds of solid pesticides were sold to private
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`applicators for agricultural use in New York. See id. at 3.
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`4 Available at https://labor.ny.gov/immigrants/state-monitor-advocate.shtm (last visited Dec. 16,
`2020).
`5 Available at https://www.dec.ny.gov/docs/materials_minerals_pdf/prl2013.pdf.
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`9
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`41.
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`California is home to 69,400 farms and ranches, totaling 24.3 million acres of
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`land. With farm receipts generating over $50 billion in agricultural output in 2019, California
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`provides more than a third of the nation’s vegetables and two-thirds of the country’s fruit and
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`nuts. See Cal. Dep’t Food & Agric., Cal. Agric. Statistics Review 2018–19, at 2 (Aug. 2019)6;
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`Cal. Dep’t Food & Agric., California Agricultural Production Statistics.7
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`42.
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`Approximately 829,300 people were employed as farmworkers in California in
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`2014. See Philip Martin et al., How many workers are employed in California agriculture?, 71
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`Cal. Agric., at 30–34 (Aug. 2016).
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`43.
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`In 2017, reported pesticide use in California totaled 204.7 million pounds of
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`applied active ingredients and 104.3 million cumulative acres treated. See Cal. Dep’t Pesticide
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`Regulation, 2017 Pesticide Use Report Highlights, at 2 (June 2019).
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`44.
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`In California, the Department of Pesticide Regulation enforces federal and state
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`pesticide regulations. The Department’s oversight includes pesticide product evaluation and
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`registration; statewide licensing of pesticide professionals; evaluation of pesticides’ impacts on
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`human health; environmental monitoring of air, water, and soil; field enforcement, in
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`conjunction with county agricultural commissioners, of laws regulating pesticide use; residue
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`testing of fresh produce; and encouraging development and adoption of least-toxic pest
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`management practices through incentives and grants.
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`45.
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`In January 2017, California amended its existing worker safety regulations to
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`align with the 2015 federal Application Exclusion Zone provisions. See Cal. Code Regs. tit. 3,
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`§ 6762. California’s Application Exclusion Zone provisions supplement existing state
`
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`6 Available at https://www.cdfa.ca.gov/statistics/PDFs/2018-2019AgReportnass.pdf.
`7 Available at https://www.cdfa.ca.gov/Statistics/ (last visited Dec. 16, 2020).
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`10
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`regulations that protect farmworkers, their families, and rural communities from the public health
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`and environmental impacts of pesticide exposure. The Final Rule will sow confusion in this
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`regulatory space, where previously the state’s rules were functionally equivalent to the well-
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`reasoned 2015 Rule. In addition, Californians who travel out of the state for agricultural work
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`will not be protected by state Application Exclusion Zone regulations and may be injured by
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`pesticide exposure because of the rule change.
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`46. Maryland is home to more than 12,400 farms spanning some 2 million acres, or
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`nearly one-third of the state’s land area. Most of Maryland’s farmland is located on the upper
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`Eastern Shore and in the north central portion of the state. U.S. Dep’t of Agric., Nat’l Agric.
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`Statistics Serv., 2018–2019 Agricultural Statistics Annual Bulletin: Maryland, at 4.8 The State’s
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`most valuable crop products include corn and soybeans. See id. at 5-6. Maryland ranks in the
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`top ten states for production of lima beans, watermelons, summer potatoes, and barley. Id. at 3.
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`47.
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`In 2015, more than 16,000 people were employed in Maryland’s agricultural
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`sector. See Bus. Econ. & Cmty. Outreach Network at Salisbury Univ., The Impact of Resource
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`Based Industries on Maryland’s Economy, at 10 (Jan. 30, 2018).9
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`48. Within Maryland, the State’s Department of Agriculture implements and enforces
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`various pesticide regulations, including the Worker Protection Standard regulations. In addition
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`to conducting on-site inspections, the Department conducts compliance presentations for
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`8 Available at
`https://www.nass.usda.gov/Statistics_by_State/Maryland/Publications/Annual_Statistical_Bulleti
`n/2018/2018_2019_MD_Annual_Bulletin.pdf.
`9 Available at
`https://www.marbidco.org/_pdf/2018/Full_Report_All_Maryland_Resource_Based_Industries_B
`eacon_2018.pdf
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`11
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`employers. In 2014, nearly 5 million pounds of pesticides were applied in Maryland. See Md.
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`Dep’t of Agriculture et al., Maryland Pesticide Statistics for 2014 (Oct. 2016).10
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`49. Minnesota ranks fifth in the nation in agricultural production, with $17 billion in
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`agricultural sales in 2017. Minnesota Department of Agriculture, Economic Analysis & Market
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`Research.11 Agricultural production and processing industries generate over $112 billion
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`annually and support more than 430,000 jobs. Id.
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`50. Minnesota has 73,200 farms on 26 million acres of farmland, comprising more
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`than half of the state’s total land area. Minnesota Department of Agriculture, Minnesota
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`Agricultural Profile.12 Agriculture is Minnesota’s top exporting industry. Id. Soybeans, corn,
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`and pork are the top three agricultural products exported from Minnesota. Id.
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`51.
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`In Minnesota, the Department of Agriculture enforces federal and state pesticide
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`regulations. The department regulates the use, application, storage, sale, handling and disposal
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`of agricultural chemicals. Agricultural Chemical Inspectors conduct routine inspections
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`statewide and enforcement staff review inspector reports to determine if violations have
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`occurred. See Minnesota Department of Agriculture, Regulation, Inspection & Enforcement.13
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`
`10 Available at http://mda.maryland.gov/plants-
`pests/Documents/MarylandPesticideSurveyPub.pdf.
`11 Available at https://www.mda.state.mn.us/business-dev-loans-grants/economic-analysis-
`market-research.
`12 Available at https://www.mda.state.mn.us/sites/default/files/inline-files/mnagprofile2019.pdf.
`The profile was created in 2019 with data through 2017.
`13 Available at https://www.mda.state.mn.us/pesticide-fertilizer/regulation-inspection-
`enforcement.
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`12
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`52.
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`In 2018, reported pesticide use in Minnesota totaled over 2 million pounds on
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`corn and 2.3 million pounds on soybeans. U.S. Dep’t of Agric., Minnesota Ag News—Chemical
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`Use.14
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`III.
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`Pesticide exposure among farmworkers, handlers, and their families.
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`53.
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`The agricultural sector ranks among the most hazardous industries in the country.
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`See Centers for Disease Control & Prevention, National Institute for Occupational Safety &
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`Health (“NIOSH”), Agricultural Safety.15
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`54.
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`Farmworkers experience particularly high rates of fatal and nonfatal injuries and
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`illnesses. See id.; see also Ramya Chari, Amii M. Kress, & Jaime Madrigano, RAND
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`Corporation, Injury & Illness Surveillance of U.S. Agricultural Workers, at ix (2017).16
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`55.
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`These injuries and illnesses include occupational exposure to pesticides. See 80
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`Fed. Reg. at 67,498 (EPA determination in promulgating the 2015 Rule that a “sizeable portion
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`of the agricultural workforce may be exposed occupationally to pesticides and pesticide
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`residues”).
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`56.
`
`According to NIOSH, during the period from 1998 to 2011, there were nearly ten
`
`thousand reported cases of acute pesticide-related adverse health effects resulting from exposure
`
`
`14 Available at
`https://www.nass.usda.gov/Statistics_by_State/Minnesota/Publications/Other_Press_Releases/20
`19/MN-Ag-Chem-Corn-Soybeans-2019.pdf.
`15 Available at https://www.cdc.gov/niosh/topics/aginjury/default.html (last visited Dec. 16,
`2020).
`16 Available at https://www.rand.org/pubs/research_reports/RR1500.html.
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`13
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`Case 1:20-cv-10642-LJL Document 1 Filed 12/16/20 Page 14 of 33
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`to a pesticide product while at work. See Centers for Disease Control & Prevention, NIOSH
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`Worker Health Charts, Acute Pesticide-Related Illnesses Charts.17
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`57.
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`In addition, as EPA has previously acknowledged, “illness resulting from
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`pesticide exposure to workers and handlers is underreported,” with studies indicating that
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`underreporting ranges from 20 to 70 percent for occupational illnesses and for poisoning
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`incidents. See U.S. Environmental Protection Agency, Office of Pesticide Programs, Economic
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`Analysis of the Agricultural Worker Protection Standard Revisions, at 123, 132 (Nov. 12, 2015)
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`(the “2015 EPA Economic Analysis”).18
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`58. Moreover, many pesticide exposures do not result in acute symptoms but, when
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`accumulated over time, can result in chronic symptoms that may occur many years after
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`exposure. Id. at 132.
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`59.
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`Acute symptoms from overexposure to pesticides vary, and can range from mild
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`skin irritation to more severe effects. Severity of symptoms depends largely on the dose and
`
`route of exposure. For example, exposure to organophosphate pesticides can result in headaches,
`
`fatigue, dizziness, nausea, cramps, diarrhea, and impaired vision. Severe acute exposures can
`
`result in seizures, respiratory depression, loss of consciousness, and death. Id. at 122.
`
`60.
`
`In addition to these acute effects, there are chronic health effects that may be
`
`associated with generalized pesticide exposure. There is a wide range of literature demonstrating
`
`statistical associations between pesticide exposure and cancer, including blood cancers, prostate
`
`cancer, and lung cancer. Id. at 162. In addition, preliminary investigations have identified
`
`
`17 Available at https://www.cdc.gov/Niosh-whc/chart/SENSOR-PE (last visited Dec. 14, 2020)
`18 Available at https://www.regulations.gov/contentStreamer?documentId=EPA-HQ-OPP-2011-
`0184-2522&contentType=pdf.
`
`14
`
`

`

`Case 1:20-cv-10642-LJL Document 1 Filed 12/16/20 Page 15 of 33
`
`
`
`elevated risks of respiratory and neurological effects, including asthma, chronic bronchitis, and
`
`Parkinson’s disease, from chronic exposure to pesticides. Id. at 159–66.
`
`61.
`
`Pesticides pose particularly dangerous risks to the children of farmworkers and
`
`pesticide handlers. Studies have shown an association between mothers exposed to pesticides
`
`during pregnancy and increased risk of birth defects and fetal death. Other studies have reported
`
`delayed mental development and development of behavior related to attention-deficit /
`
`hyperactivity disorder associated with increased childhood exposure to organophosphate
`
`pesticides. Id. at 124–27.
`
`62.
`
`Children in the families of farmworkers may be exposed to pesticides when their
`
`parents or siblings transport the pesticides into the home on their skin, clothing, and shoes. As
`
`EPA has recognized, “[c]hildren may experience different exposures than adults due to
`
`behavioral differences like crawling on the floor and putting objects into their mouths, and they
`
`can be more sensitive to these exposures because their organ systems are still developing, and
`
`they have relatively low body weights.” Id. at 119.
`
`63.
`
`Communicating the risks of pesticides to farmworkers can be challenging due to
`
`language barriers and other factors. According to the U.S. Department of Labor, 75 percent of
`
`farmworkers in the United States were born in Mexico and 2 percent were born in Central
`
`America, and 81 percent of this group speaks Spanish as a native language. See Pesticides;
`
`Agricultural Worker Protection Standard Revisions; Proposed Rule, 79 Fed. Reg. 15,444,
`
`15,452 (Mar. 19, 2014). Approximately 44 percent cannot speak English at all and 53 percent
`
`cannot read any English. Id.
`
`64.
`
`EPA has noted that the “low literacy rates, range of non-English languages
`
`spoken by workers and handlers, economic situation, geographic isolation, difficulty accessing
`
`15
`
`

`

`Case 1:20-cv-10642-LJL Document 1 Filed 12/16/20 Page 16 of 33
`
`
`
`health care, and immigration status of workers and handlers pose challenges for communicating
`
`risk management information and ensuring that these groups are adequately protected.” Id. at
`
`15,457.
`
`65.
`
`Farmworkers are predominately low-income and Hispanic, and are particularly
`
`vulnerable to exploitative labor conditions and resultant overexposure to harmful pesticides due
`
`to linguistic barriers, immigration status, and other factors. See U.S. Dep’t of Agric., Econ.
`
`Research Serv., Farm Labor.19
`
`66.
`
`As of 2017, the majority of farm laborers are people of color (68 percent), most of
`
`whom are Hispanic of Mexican origin (57 percent). Id. Farm laborers in 2019 made an average
`
`of $13.99 per hour, less than 60 percent of the average nonfarm wage. Id.
`
`67.
`
`Among these minority farmworkers, occupational pesticide-related illness is
`
`already underreported. See Joanne Bonnar Prado et al., Acute Pesticide-Related Illness Among
`
`Farmworkers: Barriers To Reporting To Public Health Authorities, 22 J. Agromedicine 395
`
`(2017).
`
`IV.
`
`The Final Rule revising the Application Exclusion Zone requirements.
`
`68.
`
`On February 24, 2017, President Trump signed an Executive Order entitled
`
`“Enforcing the Regulatory Reform Agenda.” Exec. Order No. 13,777, 82 Fed. Reg. 12,285
`
`(Mar. 1, 2017). Among other requirements, the Executive Order directed federal agencies to
`
`establish a “Regulatory Reform Task Force” to “evaluate existing regulations . . . and make
`
`recommendations to the agency head regarding their repeal, replacement, or modification,” and
`
`
`19 Available at https://www.ers.usda.gov/topics/farm-economy/farm-labor/ (last updated Apr. 22,
`2020).
`
`16
`
`

`

`Case 1:20-cv-10642-LJL Document 1 Filed 12/16/20 Page 17 of 33
`
`
`
`to “seek input and other assistance, as permitted by law, from entities significantly affected by
`
`Federal regulations.” Id. at §§ 3(d), 3(e), 82 Fed. Reg. at 12,285–86.
`
`69.
`
`On April 13, 2017, as directed by Executive Order 13,777, EPA published a
`
`request for comment to seek input on “regulations that may be appropriate for repeal,
`
`replacement, or modification.” Evaluation of Existing Regulations, 82 Fed. Reg. 17,793, 17,793
`
`(Apr. 13, 2017).
`
`70.
`
`Subsequently, on December 21, 2017, EPA published notice “that it has initiated
`
`a rulemaking process to revise certain requirements in the Agricultural Worker Protection
`
`Standard.” Pesticides; Agricultural Worker Protection Standard; Reconsideration of Several
`
`Requirements and Notice About Compliance Dates, 82 Fed. Reg. 60,576, 60,576 (Dec. 21,
`
`2017). EPA announced that it was reconsidering three aspects of the 2015 Rule, including the
`
`Application Exclusion Zone. Id. at 60,576–77.
`
`71.
`
`The agency claimed that this reconsideration was based on comments regarding
`
`the Application Exclusion Zone that were submitted in response to the “Regulatory Reform
`
`Agenda” Executive Order and EPA’s request for comments regarding that Executive Order. 82
`
`Fed. Reg. at 60,576.
`
`A.
`
`The 2019 Proposed Rule.
`
`72.
`
`On November 1, 2019, EPA published in the Federal Register a Notice of
`
`Proposed Rulemaking proposing several changes to the Application Exclusion Zone. Pesticides;
`
`Agricultural Worker Protection Standard; Revision of the Application Exclusion Zone
`
`Requirements, 84 Fed. Reg. 58,666 (Nov. 1, 2019) (the “Proposed Rule”).
`
`73.
`
`EPA proposed to lessen the protections that the

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