Ninth Circuit Rules In First Case Blaming EPA For Massive Loss of Bees in the U.S.

On September 9, 2015, the Ninth Circuit Court of Appeals for the United States vacated the U.S. Environmental Protection Agency’s approval of the pesticide sulfoxaflor, in Pollinator Stewardship Council v. EPA.

The petitioners, comprised of several beekeepers and associations, had challenged the EPA approval asserting that continued use of sulfoxaflor would risk dramatic losses in bee populations. Judge Mary Schroeder, writing the majority opinion for the panel, held that EPA violated federal law when it approved sulfoxaflor without reliable studies showing the impact of the insecticide on honeybee colonies. Specifically, Judge Schroeder stated that because “EPA’s decision to unconditionally register sulfoxaflor was based on flawed and limited data, we conclude that the unconditional approval was not supported by substantial evidence.” The Court vacated EPA’s unconditional registration of sulfoxaflor and remanded for the EPA to obtain further studies and data regarding the effects of sulfoxaflor on bees, as required by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).

The Court found that petitioners, the Pollinator Stewardship Council, American Honey Producers Association, National Honey Bee Advisory Board, American Beekeeping Federation, have standing under Article III of the Constitution. Petitioners argued that sufloxaflor poses an actual and imminent threat to beekeepers’ economic livelihood and the threat is traceable to EPA’s decision to approve the pesticide.

In its unconditional registration of sulfoxaflor, EPA concluded that sulfoxaflor will have no unreasonable adverse environmental effects and that the benefits (replacing older and more toxic pesticides with a lower dose) outweigh the risk to bees.

The Court found that EPA’s findings are unsupported by substantial evidence. The Court generally agreed with petitioners’ arguments that:

• EPA lacked valid tier two field studies regarding risks to honey bee colonies, in violation of FIFRA and applicable regulations;
• EPA improperly relied on voluntary, arbitrary or otherwise inadequate mitigation measures to reduce the risk to bees; and
• EPA improperly skewed its weighing of sulfoxaflor’s risks and benefits in favor of registration.

FIFRA, as amended in 1972, prohibits the sale or distribution of any pesticide that has not been approved (“registered”) by EPA. 7 U.S.C. § 136a(a).  Prior to registering a pesticide, EPA has a duty to ensure that it “will not generally cause unreasonable adverse effects on the environment.” 7 U.S.C.
§ 136a(c)(5)(D). The phrase “unreasonable adverse effects on the environment” is defined to mean “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of [the] pesticide.” Id., § 136(bb).

FIFRA requires the registrant to submit a proposed “label” that sets forth “a statement of all claims to be made for the pesticide under review, and any directions for its use.” 7 U.S.C. § 136a(c)(1)(C). The registrant must also submit “a full description of the tests made and the results thereof . . .” Id. § 136a(c)(1)(F). If EPA finds that the scientific data submitted by the registrant is inadequate to allow EPA to fully analyze the environmental effects, FIFRA authorizes EPA to “conditionally register a pesticide containing an active ingredient not contained in any currently registered pesticide for a period reasonably sufficient for the generation and submission of required data.” 7 U.S.C. § 136a(c)(7)(C). Alternatively, EPA may issue “experimental use permits” for pesticides that are not yet registered if the agency “determines that the applicant needs such permit in order to accumulate information necessary to register a pesticide.” 7 U.S.C. § 136c(a).

In 2013, EPA granted unconditional registrations to Dow Agrosciences LLC for two products with the active ingredient sulfoxaflor, which was formulated for manufacturing and agriculture products. National beekeeping organizations sued the agency immediately thereafter in federal appeals court, claiming that sulfoxaflor would contribute to bee colony decline. Sulfoxaflor is a neonicotinoids, which is designed to interfere with a receptor in the central nervous system of insects, causing tremors, paralysis and death at extremely low doses.

In the United States, pollination contributes to crop production worth $20-30 billion in agricultural production annually. A decline in managed bee colonies puts great pressure on the sectors of agriculture reliant on commercial pollination services, according to a USDA and EPA report on honeybee health in May 2013 (http://www.usda.gov/wps/portal/usda/usdahome?contentid=2013/05/0086.xml).