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Court Slams EPA on Reversing Pesticide Decision

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Judges on the U.S. Court of Appeals for the 9th Circuit, San Francisco, issued a stinging opinion on Sept. 10 reversing an EPA decision to register a Dow pesticide for crop protection.

The pesticide is Sulfoxaflor, a product developed and tested for farm use by Dow Agrosciences LLC. It is a new pesticide to be used on cotton, fruit, vegetables, soybeans, barley, rye, wheat, canola, tree nuts and turfgrass. It targets a range of insects, and is a new subclass of neonicotinoids because some insects have become resistant to older neonictinoids. This new sub class is actually absorbed into the plant and distributed internally and kills the insect when it eats and absorbs part of the plant for food.

EPA approved Dow’s new product under Federal Insecticide, Fungicide, and Rodenticide Act. It regulates the use and sale of pesticides. EPA has broad power under this statute to regulate crop protection products. EPA may deny an application for a new crop protection product when”…necessary to prevent unreasonable adverse effects on the environment.”
The American Honey Producers Association, National Honey Bee Advisory Board, American Beekeeping Federation, numerous organic farming groups from around the country and the Sierra Club sued EPA claiming EPA’s decision to register and approve Sulfoxaflor was based on flawed and limited data.

The Court decision is important because one judge apparently believes EPA was bullied into making its decision in favor of Dow Agro sciences. A judge said in a stinging rebuke to EPA that “I am inclined to believe the EPA decided to register Sulfoxaflor “unconditionally” in response to public pressure for the product and attempted to support its decision retroactively with studies it had previously found inadequate”.

The story painted by the three circuit court judges shows someone got to EPA. The Court describes how EPA goes about registering a new pesticide. The description of EPA’s framework is a step by step process as to why it takes so long and is so expensive for a crop protection company to receive approval from EPA for a new product. There are fascinating descriptions submitted by Dow regarding tunnel tests for bees, and how the tunnels in which bees are tested may themselves cause stress to bees.

The reader may find interesting the fact that EPA conducts environmental risk assessments according to guidance developed by the Organization for Economic Coordination and Development. This European organization has developed protocols for testing of honey bees and the impact of pesticides on them. The Court seemed concerned as to whether EPA had ever conducted the OECD test.

EPA, based on years of study by Dow, decided to give Sulfoxaflor a “conditional” registration in January, 2013. EPA indicated it was concerned about the insufficiency of data and said “…that these additional studies would resolve any residual uncertainty regarding the effects of Sulfoxaflor.”

On May 6, 2013, to the obvious surprise of the Court, EPA decided to “unconditionally” register Dow’s new crop protection product. EPA, in its new decision, justified its “unconditional” registration of Sulfoxaflor by telling farmers they should notify beekeepers within 1 mile of the treatment area 48 hours before the product is applied and ask applicators to apply the product before 7 am or after 7 pm local time or when the temperature is below 55 degrees F.  Oh, EPA also claimed that Sulfoxaflor is “very highly toxic to bees”.

The Court has a field day eviscerating EPA’s decision. In many respects, the opinion suggests EPA is dissembling. (Or, concealing the truth.) Time after time, the Court points out where EPA said there are deficiencies and additional studies needed to determine the effect of Sulfoxaflor on bees. EPA could have stuck with its original decision to grant Dow a conditional registration, but it is reasonably obvious to the Court someone in EPA’s hierarchy changed the decision for reasons other than facts.

The Court, after reviewing EPA’s briefs and argument, claims that even EPA says that some of its studies are severely flawed. The Court in one interesting quote indicates EPA’s arguments “do not fly”. The Court, in a final insult to EPA, discussed whether to remand the decision or vacate it because EPA’s decision is so bad. As the Court says, it would like to leave a rule in place in order to avoid harm, but in this case, the Court determined that “…fundamental flaws in…[EPA’s] decision make it unlikely that the same rule would be adopted on remand.” As a result due to something the Court found fishy, producers of many crops have lost a new and better product for an unknown period of time due to the Court’s apparent belief, that EPA played games.

(This article first ran in Farm Futures on September 15, 2015)
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