SAN FRANCISCO (CN) — Beekeepers and environmentalists on Thursday fought to advance a federal lawsuit claiming the U.S. Environmental Protection Agency illegally enacted rules to widen exemptions for bee-killing pesticides.
Lead plaintiff Jeff Anderson, a beekeeper who owns honey farms in California and Minnesota, sued the EPA in January, claiming a document the agency issued in May 2013 equates to a final agency action that illegally exempts more pesticides from regulation.
The document, titled “Guidance for Inspecting Alleged Cases of Pesticide-Related Bee Incidents,” states in part that “treated seed (and any resulting dust-off from treated seed)” may be exempt from registration under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).
Anderson claims that a particularly toxic strain of pesticides known as neonicotinoids have killed hundreds of thousands of bees in recent years, poisoned birds and contaminated large swaths of soil and water.
In a hearing before U.S. District Judge William Alsup on Thursday, the EPA argued its 2013 guidance document was created solely to promote uniform data collection and that it cannot be considered a final agency action subject to review under the Administrative Procedure Act.
“This is not the consummation of agency decision-making,” Justice Department attorney Martha Mann told the judge.
Mann said the document merely offers guidance for federal, state and tribal inspectors investigating pesticide-related bee deaths, and that it does not mandate compliance with the guidelines.
But the EPA’s stance in the 2013 document represents a dramatic shift in policy compared with the position it took in a 2003 agreement to harmonize pesticide regulations with Canada, plaintiffs’ attorney Amy Van Saun of the Center for Food Safety told the judge.
“The previous rule was that treated seed would only be exempted if it didn’t have an effect beyond the seed,” Van Saun said. “Previously, the dust-off was not exempt.”
The EPA’s about-face will impact pesticide use on more than 150 million acres of land, Van Saun said.
Alsup asked if dust-off was mentioned in the 2003 harmonization document. Mann replied that it was not.
“So apparently this dust-off is a new thing,” Alsup said.
The sentence that the plaintiffs’ “are hanging their hats on” is taken out of context, Mann replied, because the very next sentence tells inspectors they can decide themselves if a pesticide is subject to registration and worthy of investigation.
“The document allows variance from the guidance,” Mann said, adding that because of that the paper cannot be construed as a final agency action.
But after the document was issued, the EPA treated the guidelines as a binding decision, Van Saun told the judge.
“It hasn’t required registration of any coated-seed products,” Van Saun said. “That’s a failure to enforce.”
Given the last word, Mann told the judge that the EPA is taking a number of actions to protect bees.
The EPA proposed a rule in 2015 to prohibit the use of certain toxic pesticides during bloom seasons. The agency also says it’s working with state and tribal agencies to develop local pollinator-protection plans.
“Don’t think the EPA is not for the bees here,” Mann told Alsup.
After about 30 minutes of debate, Alsup ended the hearing and gave no indication how he might rule on the EPA’s motion to dismiss.
The judge must also rule on a motion to intervene, filed by a cadre of pesticide and farming industry groups including CropLife America, Agricultural Retailers Association and American Soybean Association.
Earlier this year, bee advocates won a small victory when the EPA announced a pesticide called imidacloprid poses a risk to hives when it comes into contact with crops that attract pollinators.
A two-year moratorium on imidacloprid and two other neonicotinoids took effect in Europe last year.
Plaintiffs suing the EPA over its alleged new pesticide exemptions include beekeepers Anderson, Bret Adee and David Hackenberg; farmers Lucas Criswell and Gail Fuller; the Pollinator Stewardship Council; American Bird Conservancy; Center for Food Safety; and Pesticide Action Network of North America.
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