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Bees Win in Court as EPA Pulls Deadly Pesticide

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By Casey C. Sullivan, Esq. on September 14, 2015 12:44 PM

Bees -- and their keepers -- won an important legal victory last Thursday when the Ninth Circuit ordered the EPA to cancel its approval of a toxic insecticide connected to bee deaths. The Ninth Circuit panel ruled that the EPA had approved Dow Chemical's use of sulfoxaflor as a pesticide without sufficient evidence about its potential effects.

The ruling is particularly important as sulfoxaflor, marketed commercially by Dow as Transform and Closer, is a neonicotinoid, a type of insecticide seen by many as connected to Colony Collapse Disorder, or the mass die off of bees.

Why Bees, and Neonicotinoids, Matter

Aristotle described bees as "divine." Proverbs demands that we eat honey, "for it is good." Shakespeare, da Vinci, and Winnie the Pooh were all fans. In short, bees are a big deal, pollinating a quarter of America's crops, generating billions in sweet honey money, and supporting over 100,000 American beekeepers. When bees start dying off, as they have been doing en masse since 2006, people pay attention. Presidents set up committees, industry groups look for causes, and scientists go to work attempting to figure out the reason for the die offs.

Many beekeepers, scientists, and environmentalists have traced bee die offs back to insecticide use, particularly of neonicotinoid insecticides. Those insecticides, targeted at pests such as aphids, are extremely toxic to bees and other pollinators and can persist in soil and plants for a significant amount of time. In 2013, Europe banned a handful of neonicotinoids just as the EPA was approving sulfoxaflor unconditionally.

Forget the Science, Let's Approve It Anyway!

After sulfoxaflor was approved, beekeeping industry groups sued, arguing that the EPA's approval process was unreasonable. Under the Federal Insecticide, Fungicide, and Rodenticide Act, only pesticides registered by the EPA can be used legally. FIFRA registration also allows the EPA to impose limits and mitigation measures on the use of pesticides.

When Dow sought approval for sulfoxaflor, the EPA sought information on how the insecticide might impact bees and other pollinators, given the concerns over neonicotinoids. That information was originally deemed insufficient and in January of 2013, the EPA proposed a conditional registration of sulfoxaflor and requested that Dow conduct further testing on the insecticide's bee impacts.

Dow never submitted any further studies, but several months later the EPA decided to approve the insecticide anyway. That decision was unreasonable, the Ninth Circuit ruled, particularly since EPA regulations require the agency to "determine that no additional data are necessary." The EPA had already made the opposite determination and what information Dow had submitted did not support approval, the court said. All of Dow's studies provided inconclusive or insufficient information on the effect of the insecticide on bee broods, the Ninth Circuit held.

The court vacated sulfoxaflor's registration, meaning that sulfoxaflor can no longer be legally used as an insecticide, and ordered the EPA to return to obtain adequate studies before attempting to approve the chemical again.

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