SAN FRANCISCO (CN) - Beekeepers and environmentalists missed some administrative hoops before challenging honeybee-killing pesticides, a federal judge ruled.
Four beekeepers joined with nonprofits including the Sierra Club, Center for Food Safety and Center for Environmental Health in suing the Environmental Protection Agency last year over its approval of pesticides containing clothianidin and thiamethoxam.
The groups alleged that the poisons and other neonicotinoids like them have decimated the honeybee population by contributing to the mysterious colony-collapse disorder, in which worker bees abandon the hive and vanish en masse, leaving the queen and unhatched brood to die.
That lawsuit accused the EPA of turning a blind eye to the deliberate misuse of neonicotinoids by farmers, who allegedly ignore the pesticide's warnings and directions. Bayer AG markets both clothianidin and thiamethoxam under a number of brand names, and Syngenta has worldwide distribution rights for thiamethoxam.
The groups also said that the EPA routinely issues conditional permits for the poisons that remain in place for years without further examination. In 2003, the agency's own scientists allegedly warned of the need to study the effects of clothianidin on bee colonies. Regulators conditionally approved one brand to go on sale two months later, but the studies have still not taken place, according to the complaint.
The EPA - joined by Bayer, Syngenta and other pesticide makers - moved to dismiss the action under the Federal Insecticide, Fungicide and Rodenticide Act, or FIFRA.
U.S. District Judge Maxine Chesney found no evidence Friday that FIFRA required the agency to publish notices each time it approves a conditional-use registration.
"Although the plaintiffs allege, in a conclusory manner, that the applications sought approval for 'new clothianidin uses' and 'new thiamethoxam uses' on 'crops and habitats where the beekeepers' honeybees foraged and pollinated,' they fail to include sufficient facts to identify the nature of any changed use pattern," Chesney wrote. "Additionally, to the extent their claims challenge the failure to provide notice with respect to pesticide products approved before March 21, 2007, the claims are subject to dismissal in light of the applicable six-year statute of limitations and the absence of any facts in the complaint to support a finding that such claims accrued on a later date."
As to the challenge of the EPA's years-long conditional permits, Chesney noted that an administrative challenge is still pending with the agency. Until that clears, the plaintiffs have not jumped through all the hurdles that FIFRA and the Administrative Procedures Act require to file suit.
Claims involving the EPA practice of handing out registrations while allowing the pesticide makers to make hazard assessments later likewise must be first hashed out administratively. Since the agency has already denied the beekeepers' petition to suspend the sale and use of some clothianidin products, however, those claims can advance, Chesney said.
The judge also dismissed claims that the EPA had an obligation to consult the Fish and Wildlife Service before approving pesticide labels, since the groups had never lodged that complaint officially. And while the EPA has a duty to consult the service under the Endangered Species Act before approving pesticides, it has no "continuing authority" over the products that would require further consultations with Fish and Wildlife, Chesney said.
Since regulators have admitted to excluding the beekeepers' new data on the dangers of clothianidin, the judge called the failure to consider new evidence both arbitrary and capricious.
The beekeepers have until May 9 to cure the deficiencies in what's left of their action against the EPA, according to the ruling.
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