EPA Asks 9th Circuit to Remand, But Not Vacate, Sulfoxaflor Registration

On Thursday, the Environmental Protection Agency (EPA) asked the Ninth Circuit in a brief to remand its registration of sulfoxaflor, but not to vacate the registration, giving the agency an opportunity to address the allegations against it and reports that the pesticide is killing bees. 

The plaintiffs, including the Center for Food Safety and the Center for Biological Diversity, argued in their opening brief in February that registration of the pesticide is killing bees and other pollinators and that the EPA did not complete requirements to consider the potential harm of the pesticide on endangered bumblebees, as reported by Law Street. The plaintiff explained that sulfoxaflor was re-registered in 2019 for use with a wider group of crops, although its 2013 registration had been vacated by the Ninth Circuit. 

The EPA responded alleging that sulfoxaflor is “a highly selective pesticide that targets a range of piercing and sucking insects,” and that it is “indispensable” as a form of pest control for farmers. Additionally, the EPA said that the pesticide is better for the environment than other widely used pesticides because it needs fewer applications, dissipates quickly in pollen, and is less toxic. 

However, the defendant did admit that it did not comply with requirements under the Endangered Species Act to issue an effects determination for the amendments to the 2019 registration, and that it should be required to give a more detailed explanation regarding how the amendments comply with the Federal Insecticide, Fungicide, and Rodenticide Act. 

In support of remanding the matter, rather than vacating the registration, the EPA argued that it was the proper decision for the circumstance, specifically, “where EPA acknowledges a legal error and also where an intervening court decision requires further examination by the Agency.” The EPA said that while it is addressing the remand, it can give additional explanation. 

The EPA also alleged that vacating the registration would cause harm because it would stop sales of sulfoxaflor for some uses and increase uses of “older, generally more toxic alternatives,” which could cause risks to both bees and humans. The defendant argued, “this environmental harm, along with the clear adverse economic consequences that would result from vacatur, establishes that remand without vacatur is proper.” 

The plaintiffs are represented by their own lawyers and the defendant is represented by the Department of Justice. DOW Agrosciences, which intervened in the lawsuit in favor of the defendant, is represented by Crowell & Moring