WASHINGTON, May 9, 2017 - The Environmental Protection Agency may have to assess the effects on endangered species of 59 products containing clothianidin and thiamethoxam, two neonicotinoid insecticides.
A federal judge has found that the agency violated the Endangered Species Act by registering the products without complying with Endangered Species Act consultation requirements, said Center for Food Safety attorney George Kimbrell, who represents his group and other plaintiffs in the case, including four beekeepers, Beyond Pesticides, the Sierra Club and the Center for Environmental Health.
U.S. District Judge Maxine Chesney of the Northern District of California did not order EPA to consult with the Fish and Wildlife Service and National Marine Fisheries Service on the effects of the products on listed species. Instead, she ordered the parties, including EPA and Bayer CropScience, which intervened on the side of the agency, to schedule a settlement conference. If settlement talks fail, the parties will have to address in court what the next step will be.
The Endangered Species Act requires federal agencies to consult with FWS and/or NMFS to ensure that the effects of any “agency action” are “not likely to jeopardize the continued existence of any endangered species or threatened species.” Historically, EPA has routinely avoided ESA consultation, perhaps because of the difficulty of assessing the impacts of pesticides on the more-than 1,600 listed species in the U.S.
But environmental groups have gotten more active in challenging the agency in recent years. A settlement the agency reached with the Center for Biological Diversity requires ESA consultations examining the effects of chlorpyrifos, malathion, diazinon, carbaryl and methomyl. EPA has evaluated the effects of the first three, but registrants including Dow AgroSciences, FMC and ADAMA have asked EPA to take back its assessments from FWS and NMFS and work on a new process for evaluating pesticidal impacts.
Chesney spent much of her opinion analyzing whether the plaintiffs had standing to sue. She concluded they did, but then ruled against them on all but the ESA claims.
Four of the plaintiffs submitted an emergency petition to EPA in 2012 seeking suspension of clothianidin’s registration on the basis that it presented an “imminent hazard” to the environment – specifically, honey bees. EPA said, however (and Chesney agreed) that the petition never explained “how the harm identified outweighed the benefits to growers and the agricultural economy from the use of the pesticide."
In the lawsuit, the plaintiffs also said EPA should have analyzed whether clothianidin posed an unreasonable risk to threatened or endangered species. Chesney, however, said the petition did not identify any evidence for that claim.
Chesney also rejected claims that EPA had violated the Federal Insecticide, Fungicide, and Rodenticide Act by failing to provide public notice when it registered seven products containing clothianidin and 19 products containing thiamethoxam.
“This is a vital victory,” said Kimbrell, the Center for Food Safety’s legal director. “Science shows these toxic pesticides harm bees, endangered species and the broader environment. More than 50 years ago, Rachel Carson warned us to avoid such toxic chemicals, and the court’s ruling may bring us one step closer to preventing another 'Silent Spring.'”
Neonic registrants Bayer CropScience, Syngenta and Valent U.S.A. said in a statement, “This case centered around plaintiffs' arguments that EPA did not follow certain processes in the registration of certain products containing clothianidin and thiamethoxam - two important crop protection tools used by farmers. For most of those arguments the judge found that EPA followed the correct procedures. The judge's order also upheld EPA's decision that there was no imminent hazard to the environment from using clothianidin products. We will be reviewing the judge's order and our options as the case moves forward into the remedy phase.”
The three companies, along with CropLife America and Responsible Industry for a Sound Environment (RISE), intervened to support EPA in the case.
Among the products potentially affected by the order: Poncho/Votivo (as well as Poncho/GB, Poncho 600 and Poncho Beta), Clothianidin Technical Insecticide, four versions of Aloft, Thiamethoxam Lawn & Landscape, CruiserMaxx Cereals, CruiserMaxx Vibrance Cereals, CruiserMaxx Rice, Durivo and Avicta Duo.
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