Los Angeles Times

Poison barred as threat to bees

- By Maura Dolan and Geoffrey Mohan

SAN FRANCISCO — An appeals court took the rare step Thursday of revoking the U.S. Environmen­tal Protection Agency’s approval of an insecticid­e, saying that the agency failed to adequately consider the chemical’s effect on bees that pollinate crops.

A three-judge panel of the U.S. 9th Circuit Court of Appeals said the EPA approved the insecticid­e, sulfoxaflo­r, based on flawed and limited informatio­n. Initial studies showed that the insecticid­e was highly toxic to honeybees.

“Bees are essential to pollinate important crops and in recent years have been dying at alarming rates,” Judge Mary M. Schroeder, a President Carter appointee, wrote for a three-judge panel.

The EPA had so little evi-

dence to justify the chemical’s approval that its decision raised questions about whether the Obama administra­tion had succumbed to public pressure, Judge N. Randy Smith, appointed by former President George W. Bush, wrote in a concurring opinion. Courts must uphold agency rules as long as they are justified by “more than a mere scintilla but less than a prepondera­nce” of evidence, Smith said.

“I am inclined to believe the EPA instead decided to register sulfoxaflo­r unconditio­nally in response to public pressure for the product,” Smith wrote. The agency then “attempted to support its decision retroactiv­ely with studies it had previously found inadequate,” he said.

The court’s decision bans the use of the insecticid­e nationwide. A spokesman for the EPA, which could appeal the decision, declined to comment.

Bee population­s have been plummeting for a decade. A 2012 USDA study blamed the decline on multiple factors, including beekeeping practices, parasites, viruses and exposure to agricultur­al chemicals.

California has more beekeeping operations than any other state. Its almond industry, the single largest user of honeybees, paid more than $292 million for pollinatio­n services in 2012, according to the U.S. Department of Agricultur­e.

California growers also do not depend on sulfoxaflo­r. State regulators have approved it only for lettuce, which does not attract bees. Lettuce growers sought special permission to use sulfoxaflo­r this year to combat an aphid infestatio­n.

Charlotte Fadipe, a spokeswoma­n for the California Department of Pesticide Regulation, said the state has long had concerns about sulfoxaflo­r and would no longer permit its use on any crop. “We have never registered it for unconditio­nal use in agricultur­e due to our concern about bees,” Fadipe said.

Mary Zischke, a spokeswoma­n for the California Leafy Greens Research Program, an industry-funded group overseen by the California Department of Food and Agricultur­e, said she was unsure how much of the insecticid­e growers applied this year. In any case, she said, bees were not likely to have been harmed.

“Bees do not find lettuce fields very attractive,” Zischke said. “There’s nothing to forage for so they don’t visit lettuce fields, so there would be little or no bee exposure resulting from usage of this material on lettuce.”

Caitlin Antle Wilson, sales and marketing director at Tanimura & Antle, a major lettuce grower, said it does not use the chemical in California and has applied only small amounts in its operations in Yuma, Ariz.

The company plans to discontinu­e its use there, she said, adding, “We will no longer be using this product even at a small level.”

The pesticide has been used on cotton crops in the Mississipp­i Delta region, according to the U.S. Geological Survey’s National Water Quality Assessment Program. About 2,500 pounds of sulfoxaflo­r were applied there in 2012, the last year for which data were available, according to the agency.

Thursday’s decision came in a challenge brought by beekeepers and beekeeping organizati­ons. Sulfoxaflo­r, made by Dow AgroScienc­es and sold under the brand names Closer and Transform, is aimed at piercing and sucking insects (such as aphids and lygus) that attack a variety of crops, including cotton, tomato, pepper, lettuce, strawberry and citrus.

Janette Brimmer, who represente­d the beekeepers for Earthjusti­ce, said federal courts almost never overturn EPA approvals of pesticides. “This was a pretty significan­t decision,” she said. “It revokes the registrati­on, and it is a national registrati­on.”

The 9th Circuit said the EPA recognized the chemical’s hazard to bees but decided that rules governing its applicatio­n would mitigate those risks. That decision was made without any meaningful study, Schroeder wrote.

“Given the precarious­ness of bee population­s, leaving the EPA’s registrati­on of sulfoxaflo­r in place risks more potential environmen­tal harm than vacating it,” the 9th Circuit concluded.

Smith went further, calling the EPA’s approval “capricious.”

“Although the EPA certainly has authority to rely on its well-founded beliefs, scientific­ally derived knowledge and experience-driven profession­al judgment, it must support the beliefs, knowledge and judgment with evidence,” Smith wrote.

In a post on its website, Dow AgroScienc­es said it would work quickly to complete additional work to show why the insecticid­e should be registered. The statement said the company was also considerin­g options for challengin­g the court’s decision. A spokesman could not be reached for further comment.

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