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Bee advocates, environmentalists, and farmers suffered a stinging defeat in federal court last week, when the District Court for the Northern District of California ruled that EPA guidance over pesticide-coated seeds is not subject to legal review.
Bees are currently suffering unprecedented die offs, with beekeepers losing 44 percent of their bees last year. Some have pointed to neonicotinoid pesticides as a likely contributor to the deaths. Those same pesticides are often applied directly to seeds, a practice the EPA generally exempts from normal pesticide regulations. Recent guidance to that effect, given to EPA inspectors, led the apiarists and others to sue, arguing that the guidance qualified as unlawful agency action under the Administrative Procedures Act.
The Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA, regulates most pesticide use and registration in the U.S., including that of neonicotinoids. Under FIFRA, pesticides must be registered with the EPA in most cases, which can result in limitations to their use.
But a 1988 exemption allowed pesticide-coated seeds to evade registration where the coating pesticide was already "registered for such use." In 2003, the EPA elaborated on that exemption, saying that seeds treated with pesticides were exempt from registration so long as the pesticide is already registered under FIFRA and the "pesticidial protection imparted to the seed does not extend beyond the seed."
Three years ago, the EPA issued further guidance for inspectors looking in to pesticide-related "bee incidents." That guidance included the following passage:
Treated seed (and any resulting dust-off from treated seed) may be exempted from registration under FIFRA as a treated article and as such its planting is not considered a "pesticide use." However, if the inspector suspects or has reason to believe a treated seed is subject to registration (i.e., the seed is not in compliance with the treated article exemption), plantings of that treated seed may nonetheless be investigated.
Though the EPA said its guidance was not a regulation and did not create any new rights, the plaintiffs claimed that the guidance violated the requirements of FIFRA, bringing suit under the APA Section 706(2), which prohibits agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
But, the court noted, the APA allows plaintiffs only to challenge final agency actions, which "mark the consummation of the agency's decisionmaking process" and are actions "by which rights or obligations have been determined." Guidance can meet that definition, but the guidance at issue here does not, Judge William Alsup ruled. The "key passage," the court found, "reads like a recommendation, not a mandate." Its permissive language emphasizes what inspectors "may" consider and proposes that inspectors can come to other conclusions in specific circumstances.
"The court is most sympathetic to the plight of our bee population and beekeepers. Perhaps the EPA should have done more to protect them, but such policy decisions are for the agency to make," the court explained. "A district judge's role is limited to judicial review of final agency actions, which do not include the type of guidance involved here."
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