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Ninth Circuit smacks down EPA for OK’ing pesticide but stops short of ban

The three-judge panel had some sharp words of criticism for the EPA — but then gave the agency exactly what it had been asking for.

(CN) — It's never a good sign, if you're the EPA, when the first paragraph of a ruling reads:

"It’s déjà vu all over again. The U.S. Environmental Protection Agency (EPA) comes before this court once more because of its failure to abide by the law."

So begins a decision released Wednesday by the Ninth Circuit, in which the three-judge panel sharply criticized the EPA's 2019 approval of the insecticide sulfoxaflor.

Nonetheless, the EPA essentially got exactly what it asked for. The judges allowed sulfoxaflor to remain on the market, at least for now, and gave the EPA 180 days to solicit public comment and address certain procedural errors it made while approving the pesticide.

The EPA's decision had been challenged by the Center for Food Safety and two industry groups, the Pollinator Stewardship Council and the American Beekeeping Federation. During oral arguments held nearly a year ago, an attorney for the industry groups told the court that the EPA hadn't collected enough data to conclusively prove that sulfoxaflor wasn't a danger to honeybees, whose numbers in recent years have already been decimated. The agency also failed to solicit public comment, thus violating the Endangered Species Act and the Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA.

"EPA admits it did not comply with the ESA but defends itself by claiming that it lacks the resources to do so," U.S. Circuit Court Judge Kenneth Lee, a Donald Trump appointee, wrote in a 50-page ruling. "EPA cannot flout the will of Congress — and of the people — just because it thinks it is too busy or understaffed."

But despite such withering criticism, the panel sided with the EPA in declining to block the approval of sulfoxaflor.

"EPA’s failure to comply with the ESA — while serious — does not warrant vacatur," Lee wrote, agreeing that "sulfoxaflor has a more favorable toxicological profile compared to alternatives." He added: "Assertions that EPA lacks enough data to support its registration decision are without merit."

The judges did order the EPA to comply with the law — solicit public comment and complete the ESA “effects determination and consultation” requirements — within 180 days.

The Center for Food Safety called the verdict a "major win," even though the judges stopped short of blocking the EPA's approval of the pesticide.

"There’s disappointment there," said Sylvia Wu, a senior attorney at the Center for Food Safety. "We believe the violations were serious enough to warrant the decision being vacated. However, we’re pleased the EPA has to act accordingly, and there’s a very tight deadline for the EPA to cure its legal defects."

Sulfoxaflor, developed by Dow AgroSciences, is a fairly new product 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 the plaintiffs. The Ninth Circuit blocked the EPA's approval of sulfoxaflor in 2015, writing that it "was based on flawed and limited data."

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

During oral arguments, the EPA's lawyer acknowledged the agency had erred in not opening a fresh public comment period, and asked the judges to allow them to do so without actually banning the pesticide.

"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."

Ultimately, the panel agreed, with 85-year-old U.S. Circuit Judge Diarmuid O'Scannlain, a Ronald Reagan appointee, joining Lee in the opinion. The third judge, U.S. Circuit Judge Eric Miller, a Trump appointee, dissented, arguing that the decision should be vacated — that is, sulfoxaflor should be taken off the market.

Miller wrote that the court's decision amounted to little more than giving the EPA "a disapproving wag of a finger" and then asking the agency "to spend the next six months trying harder." He said the EPA's mistakes were "not merely technical or formal; they raise significant doubts about the EPA’s choices."

He added: "It is the EPA’s job, not ours, to assess the risks of a pesticide. But it is difficult for us to know whether the EPA did so correctly when its errors obscure our view of the alternatives. I do not share the court’s confidence that the EPA’s violations could not have made a difference."

The EPA did not respond to an email requesting comment by press time.

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