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The US EPA has initiated a
public consultation involving the disputed expanded use
registration of Corteva Agriscience's insecticide, sulfoxaflor,
that it granted in 2019. The development follows the US Court of
Appeals for the Ninth Circuit remanding the regulator's decision
for further review in December last year.
The order had ruled that the Agency's move was in contravention
with guidelines set under the country's Endangered Species Act
(ESA), as well as the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA) as it failed to conduct the mandated public
consultation before registering the insecticide. The Court had
handed the Agency a 180-day deadline to complete pending procedures
concerning the registration, including a public consultation, as
well as consultations with the US Fish and Wildlife Service and the
nation's National Marine Fisheries Service.
In its outreach to the public, the EPA has sought comments on
its 2019 decision that restored certain uses of sulfoxaflor that
were vacated in 2015 following a Ninth Circuit ruling that flagged
its failure to adequately assess the ai's potential harm to bees.
These include use of the insecticide on crops that are attractive
to bees, such as citrus fruits, soybeans, strawberries, cucurbit
vegetables and cotton. The Agency argues that the action was
implemented following an "extensive risk analysis, including review
of one of the agency's largest datasets on the effects of a
pesticide on bees".
The consultation also focuses on the removal of certain risk
mitigation measures put in place in 2016, including a 12-foot (3.6
m) on-field aerial buffer, tank mix restriction, and limitations on
post-bloom use of sulfoxaflor-based products on crops such as pome
and stone fruits, potatoes, berries and canola, among others.
Comments on the matter must be submitted by March 27th.
Legal turmoil
The end of last year saw the Ninth Circuit dismissing the EPA's
claim that its inability to comply with the ESA stems from its lack
of resources. Although the Court refused to vacate the 2019
registration of sulfoxaflor citing probable harm to the
environment, besides disruption to the agriculture industry, it
observed that the "EPA cannot flout the will of the Congress - and
of the people - just because it thinks it is too busy or
understaffed".
The decision to uphold the insecticide's registration aligned
with the Court's observation in January 2022 that removing it from
the market would prompt farmers to switch back to older pesticides
that were sprayed more often and were more harmful to the
environment.
While the Ninth Circuit rated the Agency's reasons for not
making an effects determination of the insecticide as
"unpersuasive", it noted that the EPA, seeking remand, has offered
to "explicitly address why the economic and social costs of the
registration amendments, on balance support registration".
However, in January this year, the EPA questioned the Court's
order, arguing that the 180-day deadline was "not feasible". The
regulator said that it is "able to and intends to" meet the
requirements on or before the deadline but it does not read the
Court's decision as requiring completion of ESA consultation by the
180-day deadline.
"Respectfully, EPA submits such a reading would impose a
non-feasible deadline on it given that consultation must proceed
with the two expert wildlife agencies—the United States Fish
and Wildlife Service and the United States National Marine
Fisheries Service—who are not parties to this litigation, and
whose activities are not under the control of EPA and cannot be
directed by EPA," the Agency said. "EPA respectfully requests
clarification so that EPA can ensure it properly understands the
Court's decision and determine whether to file a motion for
rehearing. Should the Court disagree with EPA's reading,
Respondents intend to file for rehearing," it added.
Prolonged dispute
The legal debacle involving sulfoxaflor stretches back to 2013,
when the EPA granted Corteva legacy business Dow AgroSciences an
unconditional registration for the ai, allowing its use on an array
of crops for the control of aphids and tarnished plant bugs
(Lygus lineolaris). That litigation, brought by a
coalition led by the Center for Food Safety, had resulted in
upending of the insecticide's registration in 2015, with the Ninth
Circuit concluding that the Agency had relied on "flawed and
limited data" when it issued the approval. Consequently, it ordered
the Agency to vacate the registration and obtain further data
regarding the effects of sulfoxaflor on bees.
To comply with the judgement, the EPA revoked Dow's registration
of sulfoxaflor in November 2015, and granted an amended approval in
October next year for uses on crops that are not attractive to
bees. The new licence imposed several restrictions, including
buffer zones and prohibitions on tank mixing.
However, in July 2019, the Agency scrapped those mitigation
measures and reinstated approvals for use of sulfoxaflor on crops
preferred by bees - namely citrus, cotton, cucumbers, soybeans,
squash, strawberries and watermelons. The registration order also
permitted new uses on several grains, including millet and oats, as
well as on alfalfa, cacao, maize, pineapples, sorghum and tree
plantations.
At that time, Agency officials had said that sulfoxaflor's
benefits to growers far outweighed its risks and pointed to more
than a dozen new industry studies that found little potential harm
to pollinators and no requirement for the past restrictions.
Biological evaluation
In July 2022, the EPA released its draft biological evaluation
(BE) of sulfoxaflor, underlining the potential effects the ai could
have on threatened or endangered species and their habitats, and
initiated a public consultation on the matter.
This article was published by S&P Global Commodity Insights and not by S&P Global Ratings, which is a separately managed division of S&P Global.
