11
Sep
Federal Court Overturns EPA Approval of New Bee-Killing Insecticide Sulfoxaflor
(Beyond Pesticides, September 11, 2015) On Thursday, the Ninth Circuit Court of Appeals unequivocally rejected the U.S. Environmental Protection Agency’s (EPA) unconditional registration of the systemic and bee-toxic pesticide sulfoxaflor. The Court concluded that EPA violated federal law and its own regulations when it approved sulfoxaflor without reliable studies regarding the impact that the insecticide would have on honey bee colonies. The Court vacated EPA’s unconditional registration of the chemical, meaning that sulfoxaflor may no longer be used in the U.S. However, while the decision is good news for now, it still leaves the door open for sulfoxaflor’s future use once EPA obtains the necessary information regarding impacts to honey bees and re-approves the insecticide in accordance with law. The case is Pollinator Stewardship Council, American Honey Producers Association, National Honey Bee Advisory Board, American Beekeeping Federation, Thomas Smith, Bret Adee, Jeff Anderson v. U.S. EPA (9th Circuit U.S. Court of Appeals, No. 13-7234). Dow AgroSciences (a Dow Chemical company) joined the case as an intervenor to support EPA.
EPA initially proposed to conditionally register sulfoxaflor and requested additional studies to address gaps in the data regarding the pesticide’s effects on bees. A few months later, however, EPA unconditionally registered the insecticides with certain mitigation measures and a lowering of the maximum application rate, but did so without obtaining any further studies. As a response, in 2013, beekeepers filed suit against EPA, citing that sulfoxaflor as further endangering bees and beekeeping and noting that their concerns were not properly addressed by EPA before registration was granted.
In the decision, the Court held that because EPA’s decision to unconditionally register sulfoxaflor was based on flawed and limited data, the EPA’s unconditional approval was not supported by substantial evidence. Additionally, the Agency skirted its own regulations when it ignored risk concerns, even with the reduced maximum application rate, which EPA has done before despite prior reprimands from the Court. The panel vacated the EPA’s unconditional registration because, given the precariousness of bee populations, allowing EPA’s continued registration of sulfoxaflor risked more potential environmental harm than vacating it.
In a pointed message to EPA that should be noticed by all government regulators, Judge N. Randy Smith wrote the following:
“I do not ask the EPA to “explain every possible scientific uncertainty” or instruct the EPA how to improve its analysis. See Lands Council, 537 F.3d at 988. I simply ask the EPA to explain the analysis it conducted, the data it reviewed, and how the EPA relied on the data in making its final decision. Currently, the EPA’s interesting choice of procedure and lack of explanation regarding its analysis call into question the connection between the cited data and the final decision. . .For me, unless I am provided with evidence of the EPA’s basis for its judgment and knowledge, I can only assume it acted with none.”
“Our country is facing widespread bee colony collapse, and scientists are pointing to pesticides like sulfoxaflar as the cause. The Court’s decision to overturn approval of this bee-killing pesticide is incredible news for bees, beekeepers and all of us who enjoy the healthy fruits, nuts, and vegetables that rely on bees for pollination,” said EarthJustice’s lead counsel, Greg Loarie.
Michele Colopy, Program Director of the Pollinator Stewardship Council, added, “The Pollinator Stewardship Council is pleased with the 9th Circuit Court’s Opinion concerning the registration of sulfoxaflor. Our argument, presented by EarthJustice attorney, Greg Loarie, addressed our concerns that EPA’s decision process to unconditionally register sulfoxaflor was based on flawed and limited data, and the 9th Circuit Court agreed with us. We can protect crops from pests and protect honey bees and native pollinators. To do this, EPA’s pesticide application and review process must receive substantial scientific evidence as to the benefits of a pesticide, as well as the protection of the environment, especially the protection of pollinators.”
Sulfoxaflor is a relatively new active ingredient, registered in 2013, whose mode of action is similar to that of neonicotinoid pesticides —it acts on the nicotinic acetylcholine receptor (nAChR) in insects. Even though it has not been classified as a neonicotinoid, it elicits similar neurological responses in honey bees, with many believing that sulfoxaflor is the new generation of neonicotinoid. Neonicotinoids, including sulfoxaflor, are “systemic” insecticides, which means that they are sprayed onto plants, which then absorb the chemicals and distribute them throughout the plant, into the tissues, pollen, and nectar. Sulfoxaflor is registered for use on vegetables, fruits, barley, canola, ornamentals, soybeans, wheat and others. Several comments were submitted by concerned beekeepers and environmental advocacy groups, like Beyond Pesticides, that stated that approval of a pesticide highly toxic to bees would only exacerbate the problems faced by an already tenuous honey bee industry and further decimate bee populations. However, EPA dismissed these concerns and instead pointed to a need for sulfoxaflor by industry and agriculture groups to control insects no longer being controlled by increasingly ineffective pesticide technologies.
EPA states in court documents that the benefits of sulfoxaflor —like the potential to replace older and more toxic pesticides and a lower needed dose— outweigh the risk to pollinators. In registration documents, EPA also notes that none of the objections to sulfoxaflor registrations point to any data “to support the opinion that registration of sulfoxaflor will pose a grave risks to bees,” even though the agency itself acknowledges that sulfoxaflor is highly toxic to bees. The agency states that even though sulfoxaflor is highly toxic to bees it does not demonstrate “catastrophic effects” on bees from its use. While sulfoxaflor exhibits behavioral and navigational abnormalities in honey bees, EPA downplays these effects as “short-lived.” Dow AgroSciences, which developed and commercialized sulfoxaflor, intervened on behalf of EPA in the suit.
The case is one of a number of pending legal cases on EPA’s pesticide decisions under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the law that prohibits the use or sale of pesticides that lack approval and registration by the EPA, including one submitted March 2013 by Beyond Pesticides, the Center for Food Safety, beekeepers, and other environmental and consumer groups challenging the agency’s failure to protect pollinators from dangerous pesticides. That lawsuit challenges EPA’s oversight of the neonicotinoid insecticides —clothianidin and thiamethoxam— which have repeatedly been identified as highly toxic to honey bees, as well as the agency’s registration process and labeling deficiencies, and seeks suspension of the registrations.
Despite the continued decline in bee and pollinator populations across the U.S., EPA has since registered two other systemic chemicals, cyantraniliprole and flupyradifurone. Cyantraniliprole is noted by EPA as “highly toxic on acute and oral contact basis” to bees, while flupyradifurone, a new systemic, butenolide insecticide from Bayer CropScience approved just this year, is found to be “highly toxic to individual adult honey bees.” Adding these new bee toxic chemicals into the environment will mean that bees and other non-target organisms will be exposed to mixtures of chemicals that are not only highly toxic, but have yet to be evaluated for their combined or synergistic effects with other bee-toxic substances, and possibly compounding the already dire plight of pollinators, highlighting fundamental flaws in the way in which these and other pesticides are regulated under FIFRA. Additionally, actions taken by EPA to reduce neonicotinoid use have been too narrow in scope. For example, EPA’s announcement earlier this year to suspend new uses of neonicotinoids fails to address neonicotinoids already on the market, as well as neonicotinoid-like pesticides like sulfoxaflor.
Beyond Pesticides has long advocated a regulatory approach that prohibits high hazard chemical use and requires alternative assessments. Farm, beekeeper, and environmental groups, including Beyond Pesticides, have urged EPA to follow in the European Union’s footsteps and suspend the huge numbers of other bee-harming pesticides already on the market. We suggest an approach that rejects uses and exposures deemed acceptable under risk assessment calculations, and instead focuses on safer alternatives that are proven effective, such as organic agriculture, which prohibits the use of neonicotinoids. See how you can help through Bee Protective.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Source: EarthJustice, CommonDreams
