Environmental groups and attorneys general from 11 states deny the EPA’s request to maintain registration of the insecticide sulfoxaflor until the agency can meet the requirements of the Endangered Species Act.
In briefs filed with the U.S. Court of Appeals for the Ninth Circuit, they argued that the EPA’s motion, backed by registrant Dow Agrosciences, would delay the resolution of legal claims about the product for years, and urged a decision to unregister.
The use of the insecticide was previously contested and resulted in a 2015 Ninth Circle decision that was de-registered until the EPA investigated the effects on pollinators. The next year, after Dow Agrosciences amended its pollinator impact reduction application, the EPA approved a new registration with new restrictions.
However, over the past year the EPA expanded the use of Sulfoxaflor (trade names: Transform, Closer) to a variety of new crops, including corn, cotton, citrus and sorghum, but without consulting between authorities under the Endangered Species Act.
The Center for Food Safety and the Center for Biodiversity sued the agency for violating the ESA and the Federal Law on Insecticides, Fungicides and Rodenticides (FIFRA).
While the EPA admitted it had not conducted a consultation with ESA, it asked the court in October to issue an order referring the matter back to the agency while allowing the continued use of Sulfoxaflor. She said she would start the ESA review in mid-2025.
“The end of the EPA’s eleventh hour would result in the judicial review of the petitioners’ FIFRA and ESA challenges being avoided altogether, or at best delayed for about a decade, while sulfoxaflor use continues unabated,” said CFS and CBD in their brief submitted on Monday.
“The approval of the EPA’s application would set a dangerous precedent for future cases,” said the attorney general in his amicus letter. “The EPA could avoid judicial review of potential violations of the law (FIFRA) by breaking a completely different law (ESA).”
In his pleading, also filed in October, Dow said the EPA had concluded that “Not only is sulfoxaflor more effective than existing pesticides against target pests, but that previous pesticides pose a greater risk to listed species than most new chemicals, including Sulfoxaflor. ‘”
The EPA said in its brief that the insecticide was less harmful to beneficial insects than alternatives, and that non-approval would have “disruptive consequences” for farmers.
However, the CFS and CBD said, “If something is identified as ‘disruptive’ here, it is environmental damage, not just economic damage,” citing the Ninth Circle’s original decision to repeal Sulfoxaflor.
The attorneys general are from California, Hawaii, Maryland, Minnesota, New Jersey, New York, New Mexico, Oregon, Vermont, Washington, and Massachusetts.
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