No Legal Review of EPA Guidance on Pesticides, Seeds: Court

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By Pat Rizzuto

Nov. 23 — Farmers can continue to use of seeds coated with neonicotinoid insecticides following a federal district court’s ruling that guidance the Environmental Protection Agency issued is not subject to legal review ( Anderson v. McCarthy , 2016 BL 389255, N.D. Cal., No. 16-00068 WHA, 11/21/16 ).

“The court is most sympathetic to the plight of our bee population and beekeepers. Perhaps the EPA should have done more to protect them, but such policy decisions are for the agency to make,” wrote Judge William Alsup, in a Nov. 21 ruling from the U.S. District Court for the Northern District of California.

“A district judge’s role is limited to judicial review of final agency actions, which do not include the type of guidance involved here,” Alsup wrote.

Andrew LaVigne, president of the American Seed Trade Association, told Bloomberg BNA the association and farmers it works with are pleased by the decision.

“The ruling will allow farmers to continue to benefit from the use of seed treatments, which are a critical tool to minimize crop losses from pests and diseases in an economical and environmentally sustainable way,” LaVigne said by e-mail.

Guidance Constitutes Recommendations

A coalition of beekeepers, environmental and food safety groups including the Pollinator Stewardship Council, Pesticide Action Network North America and Center for Food Safety, alleged the EPA failed to protect pollinators by authorities it has under the Federal Insecticide, Fungicide and Rodenticide Act.

The failure resulted from 2013 guidance the agency issued that allows pesticide-treated seeds to be exempt from regulation as pesticides, the coalition said. The guidance allows the use of neonicotinoids, which are sold by Bayer AG, Syngenta and other large companies, but which some scientific studies have found to be harmful to pollinating insects like bees or butterflies.

The coalition referred to guidance the EPA issued in 2013 that built upon a 2003 publication, which offered the exemption under two conditions: the pesticide used to coat the seeds must be registered; and “the pesticidal protection imparted to the treated seed does not extend beyond the seed itself to offer pesticidal benefits or value attributable to the treated seed,” the 2003 harmonization document said.

The court’s ruling pointed to what it called “permissive,” not mandatory, words used in EPA’s guidance including the terms “may” and “if.”

Such language is consistent with the agency’s description of the guidance as “a set of non-binding recommendations for the use of federal, state and tribal inspectors,” the court said.

The Center for Food Safety described the ruling as a “crushing blow to the nation’s beekeepers and imperiled honey bees.”

“States will need to fill the void created by EPA’s lack of leadership,” said Lex Horan, Midwest organizer with Pesticide Action Network, in a statement the group released.

To contact the reporter on this story: Pat Rizzuto in Washington, D.C. at prizzuto@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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