In a brief filed Monday, Corteva Agriscience argued that the registration of sulfoxaflor is supported by significant evidence and that it is beneficial to the environment because it replaces older pesticides which are worse for the environment and cause lasting harm. They asked the Ninth Circuit not to vacate the registration, claiming that vacatur would harm the environment and cause economic damage to farmers.
Corteva intervened in support of the U.S. Environmental Protection Agency (EPA) in a lawsuit filed by environmental and beekeeping groups contesting the EPA’s decision to register sulfoxaflor. The plaintiffs in their opening brief in February claimed that sulfoxaflor kills bees, causing repercussions because of the lack of pollination. They alleged that the EPA did not consider the effects on endangered bumblebees before registering the product.
The EPA admitted to this in their brief and asked the Ninth Circuit to remand the registration so that they could address the gap but not to vacate its registration of sulfoxaflor. It purported that the 2019 re-registration of sulfoxaflor, following the Ninth Circuit’s vacator of the 2013 registration, would be beneficial to the environment because older pesticides have broader negative effects on bees and humans.
Corteva agreed with the EPA and asked the court not to vacate the registration. The company claimed that the petitioner’s arguments “are high on histrionics but low on science,” claiming that the company has a significant interest in keeping bees safe and designed sulfoxaflor to pinpoint “piercing, sucking, and sap-feeding insects.” Corteva claimed that, if used according to the EPA instructions, sulfoxaflor would cause a minimal risk to bees and the environment.
Additionally, the company reported that it gave the EPA “extensive data showing that sulfoxaflor products are effective … while causing no unreasonable adverse effects on bees, any other species, or the environment more broadly.” The EPA considered information from Corteva and its own data and confirmed that sulfoxaflor is more effective than many older pesticides that “are more acutely toxic to bees” and have to be applied in larger quantities and more frequently, causing more persistent environmental harm.
“Petitioners’ contrary arguments are based on speculation and hyperbole, supported by snippets from the record taken out of context,” the intervenor alleged, claiming that the Pollinator Stewardship Council and American Beekeeping Federation ignored important evidence.
Corteva claimed that the EPA’s admission that it did not complete the required Endangered Species Act Analysis by considering impacts on endangered bumblebees should not justify vacating the registration. The company alleged that this decision would harm growers who use sulfoxaflor and the environment because it would eliminate the environmental benefit of sulfoxaflor over other pesticides. The intervenor said that this matter “is a classic case for remand without vacatur while EPA meets its obligations under the ESA.”
The plaintiffs are represented by Earthjustice, the EPA is represented by the Department of Justice, and Corteva is represented by Crowell & Moring.
