Noting ‘Precariousness of Bee Populations,’ Court of Appeals Yanks EPA Approval of Dow’s Sulfoxaflor

The U.S. Court of Appeals for the Ninth Circuit struck down the Environmental Protection Agency’s unconditional approval of the neocotinoid pesticide, sulfoxaflor on September 10, 2015. In vacating the EPA’s approval of sulfoxaflor the court effectively prevents the pesticide’s sale or use in the U.S. until the agency goes through the process of determining its impacts on honeybees and re-approves it in accordance with the law.

The court ruled that the EPA approved the insecticide “based on flawed and limited data.”

Writing for the three-judge panel, Judge Mary M. Schroeder called the case “a challenge to the EPA’s approval of insecticides containing sulfoxaflor, which initial studies showed was highly toxic to honey bees. Bees are essential to pollinate important crops and in recent years have been dying at alarming rates.”

According to the court decision,

“The panel held that because the EPA’s decision to unconditionally register sulfoxaflor was based on flawed and limited data, the EPA’s unconditional approval was not supported by substantial evidence. The panel vacated the EPA’s unconditional registration because given the precariousness of bee populations, leaving the EPA’s registration of sulfoxaflor in place risked more potential environmental harm than vacating it.”

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Petitioners in the case of The Pollinator Stewardship Council v. EPA include the Pollinator Stewardship Council, the American Honey Producers Association, the National Honey Bee Advisory Board, the American Beekeeping Federation, and beekeepers Bret Adee, Jeff Anderson and Thomas Smith. The beekeeper groups are represented by Earthjustice, a nonprofit environmental law firm which exists “because the earth needs a good lawyer.”

Concurring judge N.R. Smith also “wrote separately to ask the EPA to explain the analysis it conducted, the data it reviewed, and how it relied on the data in making its final decision.”

Background

The use or sale of pesticides is prohibited without approval and registration by the EPA, according to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

“FIFRA was essentially rewritten in 1972 when it was amended by the Federal Environmental Pesticide Control Act (FEPCA),” according to the EPA.

“Since the FEPCA amendments, EPA is specifically authorized to: (1) strengthen the registration process by shifting the burden of proof to the chemical manufacturer, (2) enforce compliance against banned and unregistered products, and (3) promulgate the regulatory framework missing from the original law.”

Sulfoxaflor is a neocotinoid pesticide “which initial studies showed were highly toxic to bees,” according to the court decision. The pesticide is manufactured by Dow AgroSciences and marketed under the brand names Closer and Transform.

According to Earthjustice, “A growing body of independent science links a class of pesticides called neonicotinoids (neonics) to bee declines, both alone and in combination with other factors like disease and malnutrition. Twenty-nine independent scientists conducted a global review of 800 independent studies and found overwhelming evidence of pesticides linked to bee declines.”

9th Circuit Court of Appeals ruling

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