WASHINGTON, Sept. 30, 2015 - All sides in the ongoing debate over pesticide use are still sorting out the implications of a federal appeals court decision to revoke the registration of sulfoxaflor, but one thing seems clear: Before approving any new chemical formulations, EPA needs to get its proverbial ducks in a row.

On Sept. 10, the Ninth Circuit Court of Appeals in San Francisco found that EPA’s May 2013 decision to unconditionally register Dow Agrosciences’ sulfoxaflor “was based on flawed and limited data” concerning the product’s effect on honeybees.

“What data Dow submitted did not support approval of sulfoxaflor” at either the proposed maximum rate or the reduced maximum rate, the court concluded in a strongly worded 3-0 ruling regarding EPA’s approval process.

“[G]iven the precariousness of bee populations, leaving the EPA’s registration of sulfoxaflor in place risks more potential environmental harm than vacating it,” the court said.

In response, Dow said it “respectfully disagree[d]” with the decision, but added it would “work with EPA to implement the order and to promptly complete additional regulatory work to support the registration.” Both Dow and EPA said they’re looking at their legal options, but short of a long-shot petition to the Supreme Court, the only realistic legal avenue available would be a petition for rehearing before an expanded panel of Ninth Circuit judges.

EPA also pointed out that, despite the court’s description of sulfoxaflor as “a subclass of neonicotinoids called sulfoximines,” it is, in fact, not a neonic, even though both act in similar ways.

As a class, neonics are the most widely used insecticides in the world, according to published studies. But as their use has grown steadily since their introduction in the 1990s, so have questions about their toxicity to bees.

The European Union adopted broad restrictions on the use of clothianidin, imidacloprid and thiamethoxam – all neonics – in 2013, and last month the European Food Safety Authority said risk assessments “confirmed” the dangers posed by those substances to bees.

In a commentary on the court decision, chemical industry experts James Aidala, Timothy Backstrom and Lisa Campbell of environmental law firm Bergeson & Campbell, said it could force EPA “to reconsider its recent reluctance to avoid issuing conditional registrations and its preference for unconditional registrations for new active ingredients.” In addition, it “could cause EPA to be more explicit in adding procedures to its standard analytic methodologies that allow deviations from the methodology based on professional judgment.”

Aidala is a former assistant administrator for EPA's Office of Prevention, Pesticides, and Toxic Substances.

Meanwhile, advocates for a pesticide-free future see hope in the court’s decision, while extension agents see potential disaster.

The decision “strengthens our case that pesticides must not be put to market with data gaps,” said Nichelle Harriot, Beyond Pesticides’ regulatory director. Jay Feldman, the longtime executive director of that group, added that while he was not surprised by the decision, it was nonetheless unusual, because courts typically defer to agency experts.

“This is a good sign,” Feldman said, citing the court’s “scrutiny of [EPA’s] scientific review and regulatory process.”

The key issue in the case was sulfoxaflor’s effect on bees. Even before the court decision, EPA had been trying to address the pollinator issue, floating a proposal in May to add label restrictions to 76 active ingredients, including sulfoxaflor and five neonics, in order to protect bees. The previous month, the agency said it would probably not approve new outdoor uses of neonics until it reviewed more data on risks to bee health.

Two entomologists contacted by Agri-Pulse said growers could be between a rock and a hard place without sulfoxaflor, which is marketed under the tradenames Transform and Closer.

Michael Rogers, director of the Citrus Research and Education Center at the University of Florida, said sulfoxaflor is one of only two effective controls for Asian psyllids during the six- to eight-week bloom period. He also said that while “other insecticides could potentially harm bees exposed to residues, this is a much safer pesticide.” Rogers said that “this year in particular, there were no reported incidents of bees being exposed to pesticides.” 

Gus Lorenz, an extension entomologist and distinguished professor at the University of Arkansas, said “it’s very, very difficult for [cotton growers] to get control of plant bugs” without sulfoxaflor.

The alternatives, he said, are “early-season shots of neonicotinoids” along with applications of pyrethroids and organophosphates such as acephate, which he said “have a lot more toxicity on honeybees.”

But Feldman and George Kimbrell, an attorney with the Center for Food Safety, said their goal is to wean farmers off pesticides completely.

“There needs to be a paradigm shift,” said Kimbrell, whose group is suing EPA over its approval of clothianidin and thiamethoxam.

“That sounds good,” Lorenz said. “But we got growers trying to scramble to make a crop.”

For its part, the National Cotton Council said it is “very concerned that the court’s judgment omitted consideration of (the Federal Insecticide, Fungicide and Rodenticide Act’s) benefits component . . . and potentially sets a precedent jeopardizing the availability of crop protection products. The NCC believes the opinion reflects more of a precautionary principle of protection that could influence future registration and registration review decisions of all crop protection products.”


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