The Environmental Protection Agency approved use of a pesticide that is highly toxic to bees in violation of federal law, a panel of the US Court of Appeals for the Ninth Circuit has ruled in a decision that overturned the EPA’s approval of the chemical.
The court also alleged that the agency ignored scientific studies that showed the Dow product, called sulfoxaflor, was a threat to bees, the court alleged.
“Setting aside the EPA’s procedure, I still do not find that the EPA supported its decision  with a satisfactory explanation that was rationally connected to the fact,” Circuit Judge N. Randy Smith wrote in a concurrence to the case, Pollinator Stewardship Council vs. EPA.
Smith was one of three judges who voted unanimously to vacate an EPA order approving sulfoxaflor, a neonicotinoid pesticide for agricultural use.
The agency approved sulfoxaflor in 2013.
Among other things, the judges found that the EPA  took unsubstantiated claims made by Dow at face value.
“As part of its registration application, Dow made a number of claims regarding the benefits to using sulfoxaflor over other comparable pesticides,” Judge Mary M. Schroeder wrote. “These claims and the support for them are not in the public record.”
The EPA’s approval of the pesticide, Schroeder wrote, was “based on flawed and limited data.”
From April 2014 to April 2015, beekeepers lost 42 percent of their bees, a May survey found. Schroeder acknowledged the data.
“This case is a challenge to the EPA’s approval of insecticides containing sulfoxaflor, which initial studies showed were highly toxic to honey bees,” Schroeder wrote. “Bees are essential to pollinate important crops and in recent years have been dying at alarming rates.”
Did the EPA Put Bees at Risk?
Schroeder also charged the EPA  with putting bees at risk for colony collapse disorder and other problems. Schroeder added that the EPA actually had acknowledged the danger to bees during the approval process.
“The EPA was concerned about the risk to bees during the time it would take to do more studies,” Schroeder noted. “Nevertheless, in addressing the risk, the EPA determined that sulfoxaflor could be used while these studies were being performed, because ‘sulfoxaflor applications will not result in a catastrophic loss to brood during the time period required for the conditional studies to be performed and assessed.’”
The EPA gave unconditional approval for sulfoxaflor use even though Dow presented no evidence that it was not a threat to bees,” Schroeder wrote.
“It [gave approval] even though the record reveals that Dow never completed the requested additional studies,” Schroeder alleged. “The EPA acknowledged the insufficiency of the data to support unconditional registration at the maximum rate.”
Dow was able to convince the EPA that sulfoxaflor was safe because it promised to implement mitigation measures to protect bees, even though no one knew if the measures would actually work.
“The record does not indicate the EPA had ever received any additional data on the effect of such measures,” Schroeder wrote.
The court ruled that the EPA had violated a law called the Federal Insecticide, Fungicide and Rodenticide Act that requires to ban any pesticide that could create “unreasonable adverse effects on the environment.”
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