Sep 102015

Bee pollinating basil (public domain image)

Ed. note: Our initial report on this decision, relying on the court's decision, identified sulfoxaflor as a neonicotinoid. It is, in fact,a  sulfoximine. (The opinion said sulfoxaflor "acts on the same receptor in insects as does the class of insecticides referred to as neonicotinoids, but its mechanism is distinct from other neonicotinoids, so it is currently the only member of a subclass of neonicotinoids called
sulfoximines. Some insects that are resistant to other
neonicotinoids are not resistant to sulfoxaflor because of the unique mechanism sulfoxaflor uses." In a statement issued after the decision, EPA said flatly, "Sulfoxaflor is not a neonicotinoid."

Also: While this item does not directly implicate endangered species or wetlands, it could well have an impact on petitions seeking listing of butterflies or bees. There's no question it's a significant decision.


Sept. 10, 2015 -- The Ninth Circuit vacated EPA's unconditional registration of Dow AgroSciences' insecticide, sulfoxaflor, saying it was "based on flawed and limited data [and] was not supported by substantial evidence" (Pollinator Stewardship Council v. EPA, 13-72346).

The opinion is posted below. Here is Earthjustice's announcement and its initial press release (upon suing)

Feb 102015

Environmental groups file motion in 9th Cir. seeking stay of EPA approval

EPA should have consulted with the Fish and Wildlife Service before approving a new herbicide for use in the Midwest, environmental groups and a food safety group argue in a motion filed in the Ninth Circuit Court of Appeals (NRDC v. EPA, 14-73353).

News release (Earthjustice, Feb. 9)

The request for stay pending review was filed by the Center for Food Safety, National Family Farm Coalition, Pesticide Action Network North America, Beyond Pesticides, Environmental Working Group, and Center for Biological Diversity, and is supported by the Natural Resources Defense Council, which filed its own petition for review.

The herbicide, called Enlist Duo,"is specifically designed and registered to be used on 'Enlist' crops, which are new varieties of corn and soy that have been genetically engineered by Dow [AgroSciences] to withstand both 2,4-D and glyphosate," the petition says. "The technology is marketed as a chemical means to rid fields planted with Enlist corn and soy of unwanted weeds, without damaging the crop itself."

The groups argue that they are likely to win their case because EPA did not consult under the Endangered Species Act's Section 7 about the effects of Enlist Duo on the whooping crane and Indiana bat.

“EPA admits that its approval of a toxic pesticide cocktail including 2,4-D for widespread use may affect endangered species, including the whooping crane, one of the most endangered animals on earth,” said Earthjustice Managing Attorney Paul Achitoff. “We ask only that the court decide whether EPA has violated the law, as we believe it has before putting these imperiled birds at further risk.”

The challenge was filed in the Ninth Circuit in October.


Dow opposition to original motion for stay (1/23/15)

Dow AgroSciences news release (pre-motion) Company "announced quality standards for glyphosate trait stacking with Enlist. The company said it will allow Enlist to be stacked with advanced glyphosate traits only. It will not allow stacking with the first generation of the Roundup Ready® trait."

Mar 032011

A Biological Opinion is a final agency action that is reviewable in court, the Fourth Circuit Court of Appeals ruled in a case involving the effect of three widely used pesticides on Pacific salmon (Dow Agrosciences LLC v. National Marine Fisheries Service, 09-1968).

NMFS contended that a BiOp it issued on the effects of chlorpyrifos, diazinon, and malathion would not be reviewable in court unless and until EPA made a decision on re-registration of the three pesticides.

The chemicals’ manufacturers sued, claiming that NMFS did not use the best available science, as required by the ESA. The district court in Maryland ruled in favor of NMFS, but the Fourth Circuit reversed and remanded.