Article updated at 2:21 p.m. EDT.
A three-judge panel found today that U.S. EPA had erred in allowing the use of an insecticide linked to the decline of honeybees and other pollinators over the last decade, saying the agency used "flawed and limited data" to justify its approval.
The 9th U.S. Circuit Court of Appeals vacated EPA's unconditional registration of sulfoxaflor, a neonicotinoid pesticide linked to bee deaths.
"Given the precariousness of bee populations, leaving the EPA's registration of sulfoxaflor in place risked more potential environmental harm than vacating it," Judge Mary Schroeder wrote.
Four beekeeping organizations and three individual beekeepers petitioned the court to review the agency's approval of the pesticide under the Federal Insecticide, Fungicide and Rodenticide Act in 2013. The challengers were the Pollinator Stewardship Council; the American Honey Producers Association; the National Honey Bee Advisory Board; the American Beekeeping Federation; and beekeepers Bret Adee, Jeff Anderson and Thomas Smith.
EPA granted "unconditional" registration even though sulfoxaflor's manufacturer, Dow AgroSciences LLC, provided limited data and studies that didn't conform to international guidelines, according to the opinion. Moreover, the judge wrote, the studies didn't account for brood development within the hive and long-term colony health.
"Because the honey bee colony is an interdependent 'superorganism,' the effect of an insecticide on one type of bee can ripple through the hive," wrote Schroeder, who was appointed by President Carter.
In oral arguments, Justice Department attorney John Thomas Do said EPA didn't include certain findings in its final risk assessment because it didn't "notice a catastrophic event for the brood." The brood includes bee larvae and pupae in the hive that have not fully developed. He added that pesticides regulated under FIFRA are approved on a cost-benefit balance, meaning they can be sold even when there is some risk (Greenwire, April 15).
Greg Loarie of Earthjustice, an environmental law organization that represented the petitioners, praised the court for wading into technical aspects of the case, which he deemed a "wake-up call" for EPA to be more fastidious and transparent in how it brings pesticides to market.
Michele Colopy, program director with the Pollinator Stewardship Council, applauded the decision.
"With the findings in this case EPA may be encouraged to re-examine other unconditional registrations for possible flawed and limited data," she said in a statement.
EPA is set to review the registration of five other neonicotinoid insecticides by 2019.
Dow Agrosciences was an intervenor in the case. Garry Hamlin, a spokesman for Dow Agrosciences, said the company is considering available options for challenging the court's decisions.
"Dow AgroSciences respectfully disagrees with the Ninth Circuit’s conclusion that EPA's registration of products containing sulfoxaflor should be vacated. Dow AgroSciences will work with EPA to implement the order and to promptly complete additional regulatory work to support the registration of these products," Hamlin said in a statement.
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