Poi­son barred as threat to bees

Los Angeles Times - - CALIFORNIA - 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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