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US court to determine fate of neonic registrations

A US federal judge in California is considering whether to pull 59 neonicotinoid insecticide products from the market.

A US federal judge in California is considering whether to pull 59 neonicotinoid insecticide products from the market. The US EPA has approved them without completing its consultation obligations under the Endangered Species Act (ESA).

Environmentalists have asked US District Judge Maxine Chesney to vacate the registrations and to order the EPA to complete its required ESA consultations with the federal wildlife agencies.

In May 2017, Judge Chesney found that the Agency had violated the ESA when it approved the clothianidin and thiamethoxam products. The federal law requires the EPA to determine whether a pesticide "may affect" a listed species and then consult with the US Fish and Wildlife Service and the National Marine Fisheries Service. The three agencies are then supposed to work together to determine whether a pesticide under registration review would put a listed species in jeopardy and develop any needed mitigation measures or pesticide use restrictions.

But disagreements between the EPA and the wildlife agencies over how to assess the potential harm to listed species have hampered the process and very few consultations have actually been completed.

The underlying lawsuit, filed in March 2013 by environmentalists and beekeepers in the US District Court for the District of Northern California, challenged the product registrations for the 59 products. It alleged that the EPA had run afoul of the ESA as well as the Federal Insecticide, Fungicide and Rodenticide Act (FIFIRA) by allowing 2 million lbs (900 tonnes) of clothianidin and thiamethoxam to be used annually on more than a dozen different crops across some 100 million acres (40 million ha). The plaintiffs argue that the EPA should have at least imposed much tighter restrictions because of health and environmental concerns, particularly the impacts on bees and other pollinators.

Judge Chesney rejected all of the claims related to the EPA's application of the FIFRA but suggested that she had little choice but to find that the Agency had violated the ESA. "The EPA concedes it has not consulted either said agency nor made a 'no effect' determination with respect to the actions challenged," the judge concluded.

The environmentalists say that the EPA's disregard for the ESA warrants vacating the registrations "until and unless" the Agency completes the required consultation. The Agency's assessments of the neonicotinoids clearly showed that the products "may affect" listed species and thereby meet the ESA's trigger for consultation, the plaintiffs argue.  "The evidence is overwhelming that this low bar is met," the plaintiffs add. "The Court should not reward the Agency’s violations of law with more time, leeway, and room for more malfeasance."

Vacating the registration also has the "inherent advantage" of giving the EPA time to comply with the ESA without the products "still being on the market and spread into the environment", the plaintiffs conclude.

The EPA has filed its response with the Court this month, arguing that vacating the registrations would force the Agency to engage in a "rushed and piecemeal ESA consultation" that would needlessly hurt farmers and do little to benefit ESA-listed species. The fate of the 59 products has "broad implications for the success of a myriad of commercial and private crops grown across the country", according to the EPA.  "Plaintiffs ignore this reality and the other complexities presented by this."

The EPA notes that it is working to implement a new ESA consultation process with the wildlife agencies based on recommendations from the National Academy of Sciences and should be afforded "discretion and time" to apply the new methods to each of the 59 registrations.  The ESA issues for the affected registrations are best addressed within "a broader ESA consultation" that the Agency intends to conduct for its registration review of all pesticide products containing clothianidin and thiamethoxam, according to the EPA.

The Agency has told the Court that it could complete the nationwide biological evaluations for the two neonicotinoids by June 2022.

Industry association CropLife America and the registrants of the affected products – Bayer’s Crop Science division, Syngenta (owned by ChemChina) and Sumitomo Chemical subsidiary Valent USA – has echoed the Agency's request to the Court.

The industry intervenors say that the plaintiffs lack standing to demand that the Agency vacate the registrations and contend that pulling the products from the market "would be counterproductive, increasing overall pesticide use and forcing growers to resort to other active ingredients that EPA has identified as posing greater risks and has therefore sought to replace for decades".

Judge Chesney has scheduled a hearing for February 23rd to consider the dispute.

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