WASHINGTON, Nov. 22, 2016 – Seeds coated with neonicotinoid insecticides will continue to be exempt from regulation under the Federal Insecticide, Fungicide, and Rodenticide Act, following a federal judge’s ruling Monday in a lawsuit brought by beekeepers and environmental groups.
A 2013 guidance document issued to EPA staff investigating bee deaths is not subject to legal review, U.S. District Judge William Alsup found.
“The court is most sympathetic to the plight of our bee population and beekeepers,” Alsup said. “Perhaps the EPA should have done more to protect them, but such policy decisions are for the agency to make. A district judge’s role is limited to judicial review of final agency actions, which do not include the type of guidance involved here.”
That guidance said that pesticide-treated seeds cannot be regulated as pesticides under FIFRA as long as the seed coatings themselves are registered, and “the pesticidal protection imparted to the treated seed does not extend beyond the seed itself to offer pesticidal benefits or value attributable to the treated seed.”
The pesticide industry cheered the decision.
CropLife America “applauds the court for reinforcing the importance of decisions built on the foundation of established science-based reviews of crop protection products,” said CLA President and CEO Jay Vroom.
“This decision protects the ability of growers to continue using seed treatment technology that is vital to American agriculture, permits EPA to retain its current regulatory approach for treated seeds, and allows EPA and the agricultural value chain to continue their important work on pollinator health issues,” CLA said.
CLA, the American Seed Trade Association (ASTA), Agricultural Retailers Association (ARA), National Cotton Council of America, American Soybean Association, National Association of Wheat Growers and National Corn Growers Association all intervened in the case on the side of EPA.
ASTA also welcomed the decision. “The ruling will allow farmers to continue to benefit from the use of seed treatments which are a critical tool to minimize crop losses from pests and diseases in an economical and environmentally sustainable way,” said Andrew LaVigne, ASTA’s president and CEO.
The ARA said the decision prevents more regulation. “Plaintiffs’ intent was that the process of treating a seed should be considered an act of manufacturing a pesticide, and thus the treated seed would require its own FIFRA label (separate from the FIFRA label for the treatment product),” ARA said. “Facilities such as ag retail outlets who apply seed treatments would then be considered as manufacturers of pesticides and therefore need to register as such with EPA.”
The plaintiffs were disappointed, but also noted that Alsup “dismissed the case on an administrative procedure basis, not on the fundamental question of whether the exempted seeds are harming honey bees.”
However, “The broader implications of this decision drive the nails in the bee industry’s coffin,” said lead plaintiff Jeff Anderson, a California and Minnesota-based commercial beekeeper and honey producer.
“Of course as a beekeeper I am concerned about my livelihood, but the public at large should also be alarmed,” Anderson said. “More than one-third of the average person’s diet is generated by pollinators that I help manage.”
Andrew Kimbrell, director of the Center for Food Safety, called it “astounding that a judge, EPA or anyone with any common sense would not regulate this type of toxic pesticide use, especially when the seed coatings are so broadly applied and there is so much at risk. Study after study has shown that seeds coated with these chemicals are a major culprit in catastrophic bee-kills. Now more than ever our country’s beekeepers, environment and food system deserve protection from agrichemical interests, and it is EPA’s job to deliver it.”
When it filed the lawsuit, CFS and the other plaintiffs said EPA “has allowed millions of pounds of coated seeds to be planted annually on more than 150 million acres nationwide . . . without requiring the coated seeds to be registered under (FIFRA), without enforceable labels on the seed bags, and without adequate assessments of the serious ongoing environmental harm.”
Neonic manufacturers disagree that the compounds are harmful to bees. Bayer CropScience, for example, says studies conducted “at field-realistic exposure conditions” showed “no adverse effects to bee colonies.”
In addition to the Center for Food Safety and Anderson, plaintiffs include the Pollinator Stewardship Council, beekeepers Bret Adee and David Hackenberg; farmers Lucas Criswell and Gail Fuller; and the, American Bird Conservancy and Pesticide Action Network of North America.
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