Environmental Groups Ask Again for Allegedly Bee-Harming Pesticide to be Vacated

Environmental groups and bee advocacy groups filed reply briefs in a Ninth Circuit lawsuit contesting that the Environmental Protection Agency (EPA) should not have registered sulfoxaflor, a pesticide produced by Corteva, because of the risk it purportedly causes to bees. 

One reply brief was filed by the Pollinator Stewardship Council, American Beekeeping Federation, and Jeffrey S. Anderson, all represented by Earthjustice, and a second reply brief was filed by the Center for Food Safety and other plaintiffs represented by the Center for Food Safety and Center for Biological Diversity. Each brief was filed by plaintiffs in one of the two separate lawsuits being heard in the same Ninth Circuit matter. 

Previously, the EPA asked the Ninth Circuit to remand the registration of sulfoxaflor without vacating it so that the agency can evaluate the harms the pesticide has on bees, taking required steps the plaintiffs allege the EPA neglected, without disrupting farmers who are planning to use the pesticide. Corteva argued in a brief as an intervenor that the registration of sulfoxaflor is beneficial to bees and the environment because it is better than alternative pesticides. 

The Pollinator Stewardship Council in its brief argued that the pesticide registration should be vacated, and that the court should address the claims under the Federal Insecticide, Fungicide, and Rodenticide Act claims prior to remanding the suit to the EPA as it had requested. They alleged that this case is not exceptional, and should not merit a remand without a vacatur, and further claimed that this course of action would cause environmental harm to honey bee populations. 

In the reply brief, the petitioners claimed that the EPA did not have sufficient data or sufficient economic and agricultural information to determine the risk to bees, and did not provide required public notice and comment opportunities.

“EPA has made clear it has no plans to reconsider its decision. Neither belated compliance with the ESA nor post-hoc rationalizations will address the violations described in Beekeepers’ opening brief, redress Beekeepers’ injuries, or obviate the need for judicial review of Beekeepers’ claims,” the reply brief said. It further claimed that remand would prejudice beekeepers.

The environmental organizations’ reply brief contained similar arguments. The Center for Food Safety and other plaintiffs agreed with the Pollinator Stewardship Council that the respondents had not shown that the allegations against the registration did not merit a vacatur. They alleged that the EPA’s admission of violating the EPA in registering sulfoxaflor was “egregious” and that the registration should be vacated.