Center for Food Safety et al v. EPA

Reference :

19-72109

Complaint date :

August 20, 2019

Status :

Final judgment

Place of jurisdiction :

United States, San Francisco

Plaintiffs types :

Health/Food groups, Environmental NGOs

Plaintiffs names :

Center for Food Safety (CFS), Center for Biological Diversity (CBD), Pollinator Stewardship Council

Defendants :

EPA, Andrew Wheeler

Lawyers for Health and Environmental Justice :

Stephanie M. Parent, George A. Kimbrell, Sylvia Wu, Amy van Saun

Case nature :

Administrative

Specificities :

Application for judicial review

Type(s), Product(s), Active substance(s) :

Sulfoxaflor, , Neonicotinoid

Requests :

Review the orders of the EPA granting the unconditional registration for new uses of the active ingredient sulfoxaflor and amending the registration of existing uses to remove restrictions.

Name of the Court :

United States Court of Appeals for the Ninth Circuit of San Francisco, United States

Jurisdiction level :

Decision date :

December 21, 2022

Decision nature :

Partially Positive

Decision content :

The petition for review is granted in part and denied in part. The case is remanded without vacatur to the EPA.

Legal basis :

Court Ruling :

Link to the ruling

Summary :

The 9th Circuit Court of Appeals partially granted the plaintiff environmental groups' request in a December 21, 2022 ruling, stating that the U.S. Environmental Protection Agency's ("EPA") 2019 decision to allow new uses of sulfoxaflor on over 200 million acres of crops, including soybeans, cotton, strawberries, squash, and citrus, violated the Endangered Species Act (1973), as it failed to open its proposed decision for public comment and failed to prove that the insecticide does not have unreasonable adverse environmental impacts.

In a September 10, 2015 ruling (No. 13-72346), the 9th Circuit Court of Appeals had already overturned EPA's previous 2013 approval decision for sulfoxaflor due to failures in studies of the insecticide's impacts on certain pollinators, resulting in violations of the federal Insecticide, Fungicide and Rodenticide Act.

In 2016, the EPA had re-approved the use of sulfoxaflor, subject to restrictions to reduce the risk to honey bees and other pollinators. In 2019, EPA removed these restrictions and approved new uses of sulfoxaflor on a wide range of crops. On August 20, 2019, CFS and CBD then filed a petition for review with the Court of Appeals for the 9th District of this new unconditional registration.

On July 19, 2022, three years after registration, EPA released a draft biological assessment showing that sulfoxaflor potentially jeopardizes the existence of 24 insect species, including the Karner blue butterfly and the American burying beetle, as well as 94 plant species that depend on insect pollinators.

In the December 21, 2022 ruling, the court ordered EPA to seek public comment on the expanded uses of sulfoxaflor and to prepare a new decision on sulfoxaflor within 180 days. However, it rejected a request to simply rescind the 2019 decision. This means that sulfoxaflor can continue to be used while the review is underway.

Scientific references :

Sulfoxaflor exposure reduces bumblebee reproductive success