04
Jan
Settlement Bans Some Bee-Toxic Pesticides, Requires Public Comment Period on Testing All Pesticide Product Ingredients and Regulating Pesticide-Treated Seeds
(Beyond Pesticides, January 4, 2019) First, the good news: plaintiffs in a 2013 lawsuit against the Environmental Protection Agency (EPA) can allow themselves a small victory dance. In that suit, plaintiffs made a number of claims related to EPA’s failure to protect pollinators from dangerous pesticides, its poor oversight of the bee-killing pesticides clothianidin and thiamethoxam, and its practice of “conditional registration,” as well as labeling deficiencies. The parties in the suit negotiated a settlement, as directed by a federal judge (see below), that was signed in October 2018 and portends some positive movement in curtailing the use of some toxic pesticides [12 products, each of which contains chlothianidin or thiamathoxam as an active ingredient] that harm pollinators in particular, as well as other organisms and the environment. It also establishes a public process for EPA to consider requiring whole formulations of pesticide products during registration, and redefining EPA’s interpretation of law that allows seeds treated with bee-toxic pesticides to escape regulation as a pesticide.
The suit was brought by a number of individual beekeepers and several organizations, including Beyond Pesticides, Center for Food Safety (CFS), Sierra Club, and Center for Environmental Health, and named as defendants Steven Bradbury, then-director of the Office of Pesticide Programs and Bob Perciasepe, then–acting administrator and deputy administrator of EPA. Since the initial filing of the suit, the plaintiffs have added to the original complaint with subsequent, amended complaints that challenged EPA’s denial of a request to suspend the registration of products containing clothianidin. The language of the second amended complaint noted that the subject pesticides “have been shown to adversely impact the survival, growth, and health of honey bees and other pollinators vital to U.S. agriculture” and have “harmful effects on other animals, including threatened and endangered species.”
Neonicotinoids are highly toxic insecticides that damage insects’ central nervous systems, causing death even at very low doses. Use of these compounds has swelled in the past decade-plus; these pesticides are now used on more than 150 million acres of U.S. cropland. Yet their dominant application is as a seed coating for crop seeds. Because neonicotinoids persist in soil and easily become airborne, the chemicals spread far beyond target crops and can contaminate nearby plants, water, and soil, thus posing additional threats to pollinators. In addition, neonicotinoids can harm non-target organisms, such as birds and beneficial invertebrates.
In May 2017, a federal judge ruled that EPA violated the Endangered Species Act (ESA) when it issued 59 neonicotinoid insecticide registrations between 2007 and 2012 for pesticide products containing clothianidin and thiamethoxam. U.S. District Judge Maxine Chesney rejected the claims of intervenors (pesticide producers) that the plaintiffs had not established causation between the subject pesticides and the harm to plaintiffs. But rather than order EPA to work with the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) — a requirement when a pesticide is registered (so as to reduce risks to endangered species) — the judge directed the parties, including the plaintiffs, defendant EPA, and intervenor Bayer CropScience, to move forward with a settlement conference to resolve the disputes.
At the time of that ruling, Center for Food Safety Legal Director George Kimbrell called it “a vital victory,” saying, “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.”
That settlement process occurred, and a final document (a “joint stipulation”), agreed to in the summer of 2018, was signed by current parties in the suit: plaintiff beekeepers Steve Ellis, Tom Theobald, Jim Doan, and Bill Rhodes, and the organizations identified above; defendants Andrew Wheeler (current EPA administrator), Richard Keigwin, director of EPA’s Office of Pesticide Programs; and defendant-intervenors Bayer CropScience LP, Syngenta Crop Protection, LLC, Valent USA, LLC, and CropLife America. (It is noteworthy that in the five years since the filing of the original lawsuit, the Office of Pesticide Programs at EPA has had three different directors.) Pursuant to the settlement, the U.S. District Court for the Northern District of California, San Francisco Division, issued a stay in the case. (A “stay” is a suspension of progress of a case; said stay can subsequently be lifted by a court, based on events subsequent to the issuance of the stay.)
The settlement sets in motion a number of actions and expectations, among which is the potential cancellation of the 59 pesticide registrations. The first public action was the posting in the Federal Register of two notices of EPA seeking public comment on petitions from CFS. One requests the revision of testing requirements for pesticides prior to their registration — including requiring “testing for whole pesticide formulations to account for the toxicological effects of inert and adjuvant ingredients and the testing of tank mixes to assess the interaction between pesticide ingredients. CFS believes this change is needed to meet the applicable safety standards of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).” The second requests that EPA “initiate a rulemaking or issue a formal Agency interpretation for planted seeds treated with systemic insecticides. CSF believes that the Agency [EPA] has improperly applied the treated article exemption in exempting these products from registration and labeling requirements under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).” Comments on both, which are due on or before March 21, 2019, can be directed as described here.
EPA will also need to post notice and invite public comment on the settlement agreement itself, after which, according to plaintiffs’ counsel, “The FIFRA cancelation process for the 12 products [each of which contains chlothianidin or thiamathoxam as an active ingredient] that the intervenors agreed to cancel will occur. This is the first time ever [that] the industry has agreed to such a term in any pesticide ESA settlement of this kind, so it quite precedential. . . . [T]he ESA deadlines [will] follow over the next few years. Importantly, the Court . . . will retain jurisdiction to enforce the settlement through all its steps, both the product cancellations [and] the ESA consultation steps, to ensure their completion.”
The less-good news? Even given these developments, the major neonicotinoids will continue to be used for some time. EPA typically uses a “negotiated” process to move hazardous pesticides off the market via voluntary manufacturer withdrawal (which is only then codified by EPA product cancellations), rather than take direct regulatory action. (Read commentary on this, by Beyond Pesticides Executive Director Jay Feldman, and about another example of this phenomenon here.)
Such regulatory action would inevitably invite industry challenge and force EPA into lengthy court proceedings. But this negotiation process also typically produces less-robust protections of public and environmental health than would more-direct regulatory action. The settlement is a small victory in a big sea of health and environmental risks of pesticide use. Stay abreast of developments on federal, state, and municipal efforts to rein in the use of toxic pesticides through the Beyond Pesticides Daily News Blog.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Sources: https://www.centerforfoodsafety.org/files/2013-05-31-dkt-17-0–pls–amended-complaint_71924.pdf and https://www.centerforfoodsafety.org/files/2017-5-8-dkt-269–order–granting-and-denying-in-part-msjs_54860.pdf
