Erik Derr Aug. 7, 2016, 3:24pm

SAN FRANCISCO (Legal Newsline) – A motion by the U.S. Environmental Protection Agency (EPA) asking for the immediate dismissal of a case that alleges the EPA erroneously applied regulatory exemptions to seeds coated with neonicotinoid pesticides has been denied by the U.S. District Court for the Northern District of California.

The EPA request, filed May 13, pertains to allegations by a group of beekeepers, farmers and non-governmental organizations that many crop seeds, such as those for corn and soybeans, are coated with neonicotinoids, a small portion of which are absorbed into seeds after application while the remaining coating is either scraped off treated seeds and blown away as dust during planting, or deposited in the surrounding soil and groundwater.

"There are many people who are firmly convinced that neonicotinoids are implicated in bee declines and part of the allegation is that the bees mistake dust for pollen and then thereby take up the substance...," Tim Backstrom, an environmental law attorney with Bergeson & Campbell PC, told Legal Newsline. "That's why this issue of 'dust-off' can be substantively important."

In fact, the plaintiffs assert in the Anderson v. McCarthy case documents that the neonicotinoid "dust off" not only results in the death of bees, but also has detrimental effects on fully grown plants, as well as the seeds themselves, poses a catastrophic hazard to aquatic systems and leads to the destruction of rural invertebrate life throughout the United States.

Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the EPA regulates pesticides, which are defined as a "mixture of substances that are intended to prevent, destroy, repel or mitigate a pest." As such, pesticides must be registered before they can be used, meaning the EPA must issue licenses that define the terms and conditions under which the chemicals may be lawfully sold, distributed and applied.

But, FIFRA also allows the EPA to exempt by regulation any pesticide determined not have "unreasonable adverse affects [sic] on the environment." Those FIFRA exemptions include so-called "treated articles," when the articles in question are treated with pesticides that have already been registered and the treatment was for the protection of the article itself.

The agency in 2013 issued a Guidance for Inspecting Alleged Cases of Pesticide Related Bee Incidents, which stipulated a "[t]reated seed (and any resulting dust-off from a treated seed) may be exempted from registration under FIFRA as a treated article and as such its planting is not considered a pesticide use."

Filed last January, the lawsuit contends the 2013 guidance was more than an informal procedural suggestion, as EPA lawyers maintain it was, and actually constituted a final agency action reviewable under the Administrative Procedure Act.

The case further alleges the 2013 guidance exceeds the EPA's statutory authority, is "arbitrary and capricious," and failed to follow rulemaking requirements set by the APA. The suit claims that, by not enforcing pesticide regulations in regards to treated seeds, the EPA failed to regulate and enforce FIFRA.

The plaintiffs' principal argument "is that the pesticides are not intended to protect the seeds themselves from attack by pests, but they are intended to protect the growing plant after the seeds germinate, and that shouldn't be eligible for the treated article exemption, said Backstrom, who previously served 25 years in the EPA's Office of General Counsel, where he focused on pesticide, toxic substances and air quality issues.

Of course, the debate over whether the seeds should be viewed as treated articles "is just a technicality and has relatively little to do with the scientific controversy that's really at the heart of all of this," the alleged danger posed by neonicotinoids to bees and other aspects of the natural environment, he said.

"The scientific controversy is largely still unresolved," he said. "Credible scientists are taking up positions on both sides of the issue."

Then again, "whether or not they have jurisdiction to make the arguments that they've made in this context is doubtful," Backstrom said.

The EPA moved to dismiss the case for the lack of subject-matter jurisdiction, saying that the 2013 guidance did not constitute final agency action and is therefore unreviewable under the APA.

The court's denial of the EPA dismissal motion concluded that factual issues needing to be resolved in determining if the 2013 guidance document establishes a final reviewable action are so “intertwined” with the substantive issues of the case that it would be inappropriate to try to resolve the jurisdictional issues before the filing of summary judgment motions.

The court also stated that the decision to defer action on the jurisdictional issues was a “close call,” since the “defendants put forth a strong argument in support of dismissal of the lawsuit."

Backstrom said he didn't think it would be "appropriate to construe the refusal of the district to court to dismiss the complaint in response to EPA's motion as any indication of what will happen on the substance of the jurisdictional issues."

The court also ruled in favor of allowing several trade associations that would be affected by the outcome of the case to intervene and join the list of plaintiffs in the case.

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Organizations in this Story

U.S. District Court for the Northern District of California
450 Golden Gate Avenue
San Francisco, CA 94102

U.S. Environmental Protection Agency (EPA)
1200 Pennsylvania Ave NW
Washington, DC 20460

Bergeson & Campbell PC
2200 Pennsylvania Avenue Northwest
Washington, DC 20037

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