Poison barred as threat to bees

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.