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Another Major Victory for Agriculture

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On Nov. 21, 2016, EPA won an important case for American farmers. EPA defended farmers’ rights to plant seeds coated with neonicotinoids – a class of insecticides that kill insects by affecting central nervous system. Coated seeds will continue to be exempt from EPA regulation under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) because of this court case.

The Center for Food Safety (CFS), American Bird Conservancy, Pesticide Action Network North America, and Pollinator Stewardship Council sued EPA claiming it failed to enforce FIFRA regarding seeds planted by American farmers. CFS is an environmental advocacy organization “…working to protect human health and the environment by curbing the use of harmful food production technologies and by promoting organic and other forms of sustainable agriculture.”

CFS, bee farmers and other environmental groups claimed that many seeds planted by farmers in the U.S. are coated with neonicotinoids. This pesticide treated material can be distributed through the plant and kill insects both by direct contact and from the plant if ingested. “Additionally, these seeds, when planted, can release pesticidal ‘dust-off’ that further spreads neonicotinoids beyond the seeds themselves.”

CFS and other plaintiffs claimed the practice of coating seeds with neonicotinoids “…has a systematic and catastrophic impact on bees and the beekeeping industry…” Under FIFRA, pesticides are required to be registered by EPA prior to use. There is an exception from FIFRA registration if the pesticide in question is already adequately regulated. In 1988 EPA exempted from FIFRA registration any “…articles or substances…treated with, or containing, a pesticide to protect the article or substance itself…if the pesticide is registered for such use.” For decades, American farmers have not needed to purchase FIFRA regulated seeds because of this exemption. The dispute in this case arose because EPA published a document in 2003 which discussed the harmonization of regulation of pesticide coated seeds used in Canada and the United States. In this document, EPA said treated or coated seeds were exempted if 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.” Consequently when farmers’ plant treated seeds and the pesticide is registered, then the seed is exempt from registration under FIFRA.

In 2013, EPA issued a guidance document discussing pesticide related bee deaths. In court, plaintiffs made a legal argument that this document was a “final action” and not a “guidance document”. (If a “final action” had been taken an exhaustive record would be needed to support EPA’s decision.) EPA’s guidance stated clearly that it was recommending procedures for inspectors when investigating bee deaths caused by possible dust-off from treated seeds. The opinion then delves into what constitutes legal final action or what is merely guidance which is not reviewable under the Administrative Procedures Act (APA). CFS and the other plaintiffs claimed the bee incident guidance exceeded EPA’s authority and should have applied APA’s rulemaking requirements.

Several well known agricultural groups including CropLife America, American Seed Trade Association, Agricultural Retailers Association and several commodity groups intervened in this case to help protect American farmers from CFS.

The U.S. District Court judge threw out the farm groups’ Motion for Summary Judgment claiming it was moot. The Court did state that it “…is most sympathetic to the plight of our bee population and beekeepers.” The plaintiffs themselves claimed that coating seeds with neonicotinoids is having a catastrophic impact on the beekeeping industry. The Court and plaintiffs might review a Washington Post story, July 23, 2015, which noted that U.S. honey bee colonies had hit a new high. Others, including The White House, put out a study on the health of honey bees. The reason was beekeepers did notice mysterious die-offs called “Colony Collapse Disorder” (CCD). According to USDA, even with CCD, honey bee colonies have risen since 2006 from 2.4 million to 2.7 million in 2014. In fact, commercial honey producing bee colonies “…is now the highest it has been in 20 years”.

(This article first ran in Farm Futures on Nov. 29, 2016)

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