The 9th Circuit Court of Appeals has left the registration of sulfoxaflor intact but given the Environmental Protection Agency a short timeline to assess the insecticide’s impact on endangered species.
Ruling in a lawsuit brought by environmental groups and beekeepers, the court said part of the reason it was allowing continued use of sulfoxaflor is because it “has a more favorable toxicological profile compared to alternatives.” The court also said that vacating the registration “would disrupt many agricultural sectors,” which could result in lower yields.
But the court also criticized EPA for “engaging in a whack-a-mole strategy for complying” with the Endangered Species Act. It “does little to comply with the law and then devotes resources once it has been sued – and then this process repeats itself. Parties should not have to file a lawsuit to compel EPA to follow the law.”
“EPA admits it did not comply with the ESA but defends itself by claiming that it lacks the resources to do so,” the court continued. However, “EPA cannot flout the will of Congress – and of the people – just because it thinks it is too busy or understaffed.”
Specifically, EPA violated the ESA’s requirements to determine whether sulfoxaflor “may affect endangered or threatened species or their habitat, and (if so) consult other wildlife agencies to consider its impact on endangered species,” the court said, giving EPA 180 days from the issuance of the court’s mandate – which comes sometime after the opinion – to meet those requirements.
In addition, the agency failed to comply with notice and comment requirements under the Federal Insecticide, Fungicide, and Rodenticide Act “because it did not allow the public to comment on Dow (Agrosciences’) request to reinstate expanded usage of sulfoxaflor,” the court found.
The appeals court in 2015 vacated EPA’s approval of sulfoxaflor on the grounds that Dow – now Corteva Agriscience – “had not provided sufficient scientific evidence that this pesticide would not harm honeybees,” the court said. “After Dow agreed to limit the type and scope of usage for sulfoxaflor, EPA in 2016 greenlit it for ‘limited uses’ even without additional studies. Then in 2019, EPA made a surprise announcement that it had reviewed additional studies provided by Dow and had given ‘unconditional approval’ for sulfoxaflor on various usages that it had earlier canceled.”
The Center for Biological Diversity, Center for Food Safety, Pollinator Stewardship Council, American Beekeeping Federation, and beekeeper Jeff Anderson petitioned the court to vacate the registration.
In a news release issued Wednesday, CBD and CFS said the 2019 approval expanded the product’s use “on a wide range of crops that attract bees, including soybeans, cotton, strawberries, squash and citrus. The agency action came despite the fact that its own scientists found the insecticide could threaten honeybee colonies and other pollinators.”
A draft assessment issued by the agency earlier this year found 95 plants and 24 insects are in danger of extinction due to sulfoxaflor use.
The court said public comment was required because Dow’s request to add indeterminate blooming crops to the registration and remove restrictions designed to protect pollinators qualified as new uses, not as amendments to its original application.
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“No matter how Dow asked EPA to remove restrictions on already-registered crops and add indeterminate blooming crops back, the agency should have allowed the public to weigh in,” the court said.
But the court ultimately decided to keep the registration in place until EPA complies with the ESA.
“Despite our serious concern that EPA has continued to flout the ESA, we ultimately conclude that EPA could maintain the same registration decision once it makes an effects determination and engages in any required consultation” with federal wildlife agencies, it said.
“Though EPA failed to provide notice of Dow’s request to amend the sulfoxaflor registrations, its ecological risk assessment and decision memorandum reflect that the agency considered sulfoxaflor’s impact on bees,” the court said. EPA, it said, “has received all necessary data and found no negative effect on brood development or long-term colony strength.”
The court said it was “reluctantly” remanding the registration to EPA without vacating it, so EPA can make its ecological effects determination, solicit comment on Corteva’s sulfoxaflor amendments, and address the economic impact on beekeepers.
One of the three judges would have vacated the registration. The majority "gives the EPA a disapproving wag of a finger, and asks the agency to spend the next six months trying harder. I would instead vacate the order under review," Circuit Judge Eric Miller wrote in his dissent, partially disagreeing with Judges Diarmuid O’Scannlain and Kenneth Lee.
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