FOR IMMEDIATE RELEASE
December 7, 2020
Contact: Stephen Read
State Attorneys General File Amicus Brief Opposing EPA’s Attempt to Skirt Accountability for Faulty Registration of Sulfoxaflor Pesticide
Brief warns granting EPA’s motion would allow the agency to “indefinitely delay review of its pesticide registrations while potentially risky pesticides remain on the market."
Washington, D.C. — A coalition of 11 attorneys general led by California Attorney General Xavier Becerra filed an amicus brief today opposing the Environmental Protection Agency’s (EPA) attempt to delay judicial review of the agency’s decision to approve new uses of the pesticide sulfoxaflor. The pesticide poses risks to bees and other pollinators that are essential to numerous states’ agriculture industries and ecosystems.
The AGs’ amicus brief was filed in litigation in the U.S. Court of Appeals for the Ninth Circuit over the EPA’s failure to comply with its obligations under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA) when approving new uses of sulfoxaflor. The EPA has acknowledged its failure to analyze impacts on endangered species before approving the new uses, and recently filed a motion for remand without vacatur, ostensibly to correct the ESA violation.
As the attorneys general warn in their amicus brief, granting the EPA’s motion would “unreasonably and indefinitely delay review” of the serious FIFRA violations that are now before the court and ripe for decision, while allowing sulfoxaflor to remain on the market as the agency works to correct its ESA violation — a process that would not begin “until June 2025 at the earliest.” Such an outcome would “set a dangerous precedent” for future pesticide registrations, especially given the EPA’s “ongoing and systematic failure” under the Trump administration to comply with ESA requirements in its pesticide registration processes.
“The Trump Administration’s EPA is trying to tie up litigation on its unlawful registration of the toxic pesticide sulfoxaflor indefinitely — while allowing it to remain on the market,” said AG Becerra. “Not only that, but the EPA wants to create an escape hatch for future cases where the EPA fails to complete the most basic functions of its job. We urge the court to deny this motion and send a clear message to the EPA that it cannot avoid accountability for its recent unlawful conduct.”
“The EPA is trying to cut a gaping loophole into the pesticide registration process, using its own failure to comply with the Endangered Species Act as scissors,” said David J. Hayes, Executive Director of the State Energy & Environmental Impact Center. “The purpose of the pesticide registration process is to protect consumers and ensure the integrity of our agricultural system and the health of pollinator populations that support it. This is no place for the EPA to play legal games.”
In their amicus brief, the attorneys general emphasize that the Ninth Circuit should deny the EPA’s motion for remand without vacatur because:
1. The EPA’s failure to comply with the Endangered Species Act in this instance is part of a broader pattern of registering pesticides without complying with the statute. Congress and courts have recognized this pattern and directed the EPA to address it, but the agency has made little progress in doing so. Granting the EPA’s motion “would simply return sulfoxaflor, a pesticide labeled as toxic to pollinators, to the back of the line of pesticides indefinitely awaiting ESA review.”
2. Granting the EPA’s motion would invite the agency to circumvent review of its future pesticide registration decisions. Granting the motion would create a loophole through which the agency “could avoid judicial review of potential violations of a law (FIFRA) by violating an entirely different law (ESA).” Courts avoid granting agency motions for remand if doing so would “incentivize agency gamesmanship.”
3. States rely on judicial review of the EPA's pesticide registration decisions to safeguards states’ resources, public health, economies, and ecosystems. The EPA’s failure to conduct pesticide registrations thoroughly and in accordance with law “passes the burden to states, which must then perform the jobs of both federal and state regulators to ensure that pesticides do not harm human or environmental health.”
4. Proceeding to the merits would be the most efficient way to resolve the issues in this case. The court’s review of the FIFRA claims “would be facilitated by, and should be based on, complete merits briefing,” not on “an abbreviated record and briefing in the context of EPA’s motion to remand.” Furthermore, remanding the decision to the EPA “would neither simplify nor address the issues in dispute.”
The attorneys general of Hawaii, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Oregon, Vermont and Washington joined AG Becerra in filing the amicus brief.
About the State Energy & Environmental Impact Center
The State Energy & Environmental Impact Center (State Impact Center) is a non-partisan Center at the NYU School of Law that is dedicated to helping state attorneys general fight against regulatory rollbacks and advocate for clean energy, climate change, and environmental values and protections. For more information, visit our website.