Georgetown International Environmental Law Review Can Pollinator Stewardship Council v. EPA Help Solve the Colony Collapse Disorder Crisis? Pt. II

BEE

Can Pollinator Stewardship Council v. EPA Help Solve the Colony Collapse Disorder Crisis? – Pt. II

by Alexander Martone, Staff Contributor

The Environmental Protection Agency is in federal court again. What is the source of its troubles this time? Owners of coal-fueled power plants? Boosters of the spotted owl? Disposers of hazardous waste?

No. This time, it’s the honeybee.

Part I of this series considered the importance of bees, the crisis of Colony Collapse Disorder, and attempts to respond to it. Part II now focuses on one particular response to the disease: a lawsuit that aims to roll back the EPA’s approval of a certain neonicotinoid insecticide, which some say is causing the malady.


Part II: Save the Bees, Sue the EPA?

In 2013, several beekeeping organizations and commercial beekeepers formed the Pollinator Stewardship Council (PSC) and brought suit against the U.S. Environmental Protection Agency (EPA) for its decision to register sulfoxaflor, a neonicotinoid, as an approved insecticide under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

Under FIFRA, any new pesticide must be registered and approved by the EPA for each specific commercial application for which its manufacturers would like to market its use. According to the EPA, in the registration process the agency must “balance the potential benefits of that pesticide with the potential risks it may pose to human health and the environment.” The EPA typically evaluates a wealth of data for each registration request, and the agency is empowered to conditionally register a pesticide while waiting for enough data to complete its analysis and give a final answer on approval. After full registration is granted, the EPA still needs to review the registration approximately every fifteen years.

The EPA began considering sulfoxaflor for approval in late 2010, and in January 2013 conditionally registered the neonicotinoid as an approved FIFRA insecticide while the agency sought additional data to confirm its belief that sulfoxaflor met FIFRA standards, and was safe to use.

Just a few months later, in May 2013, the registration became final. In approval of the registration, the EPA recognized that sulfoxaflor could pose a danger to bees. However, the EPA felt that if the producers and users of sulfoxaflor employed certain mitigation practices, that danger to bees was sufficiently diminished. Specifically, the EPA called for “reduced application rates, increased minimum application intervals, and product labeling.” The agency believes that if these harm mitigation practices are followed, the danger that sulfoxaflor could pose to bees is effectively countered.

“If the harm mitigation practices are followed, the danger that sulfoxaflor could pose to bees is effectively countered.”

The challenge that the Pollinator Stewardship Council brings focuses on, as PSC sees it, the EPA’s replacement of scientific evidence demonstrating the safety of sulfoxaflor with the above-mentioned harm mitigation practices, in order to make the balance of factors weigh in favor of approving the insecticide. PSC’s challenge, rooted in administrative law, disputes that the proposed harm mitigation practices (some of which are voluntary) are sufficient to counterbalance the danger sulfoxaflor poses to bees, and thus, the EPA’s decision to register the insecticide was flawed.

Pollinator Stewardship Council
(Petitioner)
Environmental Protection Agency
(Respondent)
  • EPA’s decision to register sulfoxaflor went against the substantial weight of the evidence
  • EPA should not have substituted allegedly untested harm mitigation practices for more data showing the insecticide was safe or could be made safe
  • EPA should have engaged in more field testing of sulfoxaflor with honey bees before approving it
  • EPA’s cost-benefit analysis should have given more weight to all the adverse impacts that use of sulfoxaflor would arguably impose on the beekeeping and agricultural industries

 

  • EPA’s decision to register sulfoxaflor was supported by the substantial weight of the evidence and was within the agency’s discretion
  • EPA engaged in rigorous testing of sulfoxaflor before granting registration (as per its accepted Pollinator Risk Assessment Framework guidelines)
  • Proposed harm mitigation practices can be used to vitiate some of the danger imposed upon the environment by a pesticide up for FIFRA registration
  • EPA’s balancing of sulfoxalfor’s benefits as a less-toxic insecticide vs. the mitigated potential environmental harm satisfied the requirements of FIFRA

PSC argues that this decision by the EPA to register sulfoxaflor went against the substantial weight of the evidence, claiming that the evidence shows that using the substance on crops would cause harm to bee populations and thus cause “unreasonable adverse effects on the environment,” which should consequently disqualify the insecticide’s registration under FIFRA.

Specifically, PSC points to the EPA’s own reports, which it prepared in the run-up to its conditional registration of sulfoxaflor. In the reports, the EPA admits that sulfoxaflor is “very highly toxic” for honey bees. PSC further notes that even without the receipt of significant data contradicting that verdict, the EPA still went on to give a final registration to sulfoxaflor just months later, grounded mostly on the introduction of the above-mentioned harm mitigation practices.

“…the EPA admits that sulfoxaflor is “very highly toxic” for honey bees.”

PSC argues that the EPA should not have substituted these (in PSC’s opinion, untested) harm mitigation practices for more data showing the insecticide was safe, when moving sulfoxaflor from conditional to final registration.

PSC also argues that the EPA should have engaged in more field testing of sulfoxaflor with honey bees before approving it, and that the EPA, in its cost-benefit analysis required by FIFRA, should have given more weight to all the adverse impacts that use of sulfoxaflor would arguably impose on the beekeeping and agricultural industries.

For its part, the EPA strenuously defends its decision to approve sulfoxaflor, arguing that it was based on sound science, guided by the requirements of FIFRA, and well within its discretion as an agency.

“The EPA strenuously argues that its decision to approve sulfoxaflor was based on sound science…”

The EPA notes that it engaged in rigorous testing of the sulfoxaflor before granting conditional, and then final, registration. The agency points out that it too is seriously concerned with the threat of Colony Collapse Disorder, so much so that it promulgated a Pollinator Risk Assessment Framework. This stringent testing regimen was specifically designed to assess the harm that pesticides could cause to bees and other pollinators.

The EPA subjected sulfoxaflor to its Pollinator Risk Assessment Framework as part of its FIFRA evaluation of the insecticide. While the EPA admits that the chemical can pose a danger to bees, the agency says it was satisfied that sulfoxaflor, when used responsibly in accordance with proscribed harm mitigation practices, does not have “unreasonable adverse effects on the environment.”

“The EPA says that sulfoxaflor, when used responsibly in accordance with proscribed harm mitigation practices, does not have ‘unreasonable adverse effects on the environment.'”

Importantly, the EPA contends that its proposed harm mitigation practices can legitimately be used (as per its accepted Pollinator Risk Assessment Framework guidelines) to vitiate some of danger imposed upon the environment by a pesticide up for registration. In other words, when balancing the benefits versus the harms of a pesticide, proposed harm mitigation practices can shrink the weight that a chemical’s inherent harms place on the scale.

In addition, the EPA argues that the evidence shows that sulfoxaflor has many benefits supporting its use as an insecticide. The agency points to data that indicates that sulfoxaflor, compared to older pesticides, is less harsh on the crops it protects, is less dangerous to humans that consume those crops, and needs fewer applications onto the crops in order to be effective.

Balancing those benefits on the one hand, with the mitigated potential environmental harm on the other, the EPA avers that its decision to register sulfoxaflor satisfied the requirements of FIFRA and was supported by the substantial weight of the evidence.

With the parties making the above arguments, briefs have been filed in this case. The outcome is still very much open, however. Part III of this series considers what the possible results of this litigation might be.


 

[1] http://www.epa.gov/agriculture/lfra.html#Summary of the Federal Insecticide, Fungicide, and Rodenticide Act

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