Ninth Circuit asked to block pesticide’s approval again citing concerns over bee population

(CN) — The Ninth Circuit Court of Appeals heard oral arguments on Wednesday to a challenge of the Environmental Protection Agency's 2019 decision, approving the use of the insecticide sulfoxaflor.

The challenge was brought by three groups: the Center for Food Safety, the Pollinator Stewardship Council and the American Beekeeping Federation. The lawyer for the latter two, both industry groups, told the court that the EPA didn't have enough data to show conclusively that sulfoxaflor wouldn't endanger bee colonies, whose numbers in recent years have already been decimated.

"We’re currently losing more than 40% of colonies each year," said the attorney Greg Loarie.

Developed by Dow AgroSciences, Sulfoxaflor is a fairly new new insecticide which kills insects by disrupting their central nervous system. It was first approved by the EPA in 2013, although the agency acknowledged that the substance was "very highly toxic" to bees. The decision was challenged in court by beekeeping and honey-producer industry groups, including Pollinator Stewardship Council and the American Beeking Federation.

In 2015, the Ninth Circuit blocked the EPA's approval of sulfoxaflor, writing that it "was based on flawed and limited data."

"The EPA and Dow argue that since the studies are inconclusive as to the risks of sulfoxaflor for bees, the studies affirmatively prove that sulfoxaflor does not cause unreasonable adverse effects on bees," U.S. Circuit Judge Mary Schroeder wrote at the time. "Neither logic nor precedent can sustain this position."

In 2019, the EPA again approved the use of sulfoxaflor, writing: "sulfoxaflor poses no significant risk to human health and lower risk to non-target wildlife, including pollinators, than registered alternatives," adding that the substance "has a lower environmental impact because it disappears from the environment faster than widely-used alternatives."

In challenging the recent registration of sulfoxaflor, the three groups argued that the EPA failed to provide another public comment period. The groups also claim that the EPA's new studies are inconclusive as to the effect sulfoxaflor will have on bee colonies.

The EPA has admitted that it made certain mistakes in registering sulfoxaflor without another public comment period. It has asked the court to remand the decision — that is, to allow the EPA to amend its registration — without actually banning the substance.

"We recognize the error here," EPA attorney Meghan Greenfield told the three-judge panel. "This is a very unique pesticide. Vacating it would cause harm to human health and the environment." Without sulfoxaflor, she argued, farmers would have to revert to greater amounts of other pesticides which are more harmful to the environment. She added: "The EPA closely considered sulfoxaflor's effect on species, including bees. We found that it's less toxic."

Loarie objected to this claim, saying the EPA hasn't produced data comparing the different insecticides' toxicity with respect to bees — and especially with respect to bee colonies.

"The EPA doesn’t have the data to know sulfoxaflor's effect on bee colonies," said Loarie. The only conclusive analysis, he said, was on its effect on individual bees. The question of what happens when bees take the substance back into the hive and feed it to the colony needs further study.

And George Kimbrell, the attorney for the Center for Food Safety, pointed out: "If this is such a great pesticide, why isn’t it a reduced risk pesticide?" (a designation given by the EPA).

The judges appeared perplexed at the EPA's decision to omit the public comment period.

"To keep the government honest you need to solicit some comment from the public," said Judge Kenneth Lee, a Donald Trump appointee. "It just seems like the basic — how you run an administrative state."

But the judges also pushed back on the petitioners.

"We’re not entomological experts," said Judge Eric Miller, also a Trump appointee. "Why, when the EPA has made a judgment with the data it has available to it, why should we not defer to that?"

"We’re not asking you to second-guess the agency," said Kimbrell. "All we’re saying is, look at the data. If there’s no supporting data for their conclusion, that means it's not supported by evidence."

The three-judge panel, which was rounded out by Diarmuid O'Scannlain, a Ronald Reagan-appointee, took the matter under submission.

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