U.S. EPA given hard deadline to review insecticide's impact - appeals court

Date:11-23-2022

A federal appeals court on Tuesday set a hard deadline for the U.S. Environmental Protection Agency to evaluate whether a pesticide used on citrus trees poses a danger to endangered butterflies and bumblebees, which it called ″extraordinary″ relief after the agency ignored an earlier ruling.

The U.S. Court of Appeals for the District of Columbia Circuit said it already told the agency in 2017 to evaluate the dangers of the insecticide cyantraniliprole, which it had registered without reviewing its impact on endangered animals, but the agency has since then dragged its heels and failed to ensure its compliance with the Endangered Species Act (ESA).

The D.C. Circuit said the delay is enough to compel the intervention of the court, which sided with petitioners Center for Biological Diversity and Center for Food Safety. While the agency has more recently stated it will finish a review by September 2023, an order from the D.C. Circuit will ensure that further delays aren’t allowed, the court said.

The court also said the problems aren't isolated to cyantraniliprole, which is made by Philadelphia based FMC Corp and Switzerland-based company Syngenta AG. At least 20 lawsuits covering more than 1,000 allegedly improperly registered pesticides have been filed, according to an EPA report cited by the court.

″EPA has long had a fraught relationship with the ESA,″ wrote Judge David Tatel.

Center for Biological Diversity attorney Stephanie Parent said: ″The court’s chiding of EPA is well earned, as EPA very frequently registers new pesticides when it knows it has not complied with the ESA.″

Among the insects most at risk are the endangered rusty-patched bumble bee or the endangered Fender's blue butterfly, Parent said.

FMC spokesperson Lars Weborg said the company is "pleased" with the outcome and "will continue to participate in the EPA's process as an applicant." Syngenta, which along with FMC intervened in the suit on behalf of the government, didn’t immediately respond to a request for comment.The groups' 2021 lawsuit was the second time CBD and the Center for Food Safety took the EPA to court over its decision to register cyantraniliprole without a formal consultation as required by the ESA. The EPA first greenlit the chemical to be sold in 2014, prompting a lawsuit that year and an eventual D.C. Circuit judgment remanding the registration to the EPA.

The case is In Re Center for Biological Diversity and Center for Food Safety, U.S. Court of Appeals for the District of Columbia, No. 21-1270.

For the petitioners: Stephanie Parent and Jonathan Evans of the Center for Biological Diversity

For the government: Assistant Attorney General Todd Kim and Kamela Caschette and Patrick Jacobi of the U.S. Department of Justice

For Syngenta Crop Protection LLC and FMC Corp: Thomas Lorenzen, Kirsten Nathanson and Elizabeth Dawson of Crowell & Moring