WASHINGTON, May 13, 2016 - A lawsuit challenging EPA’s regulation of neonicotinoid-treated seeds will proceed following a federal judge’s rejection of EPA’s motion to dismiss the case.

Beekeepers and environmental groups filed a complaint in January contending that EPA violated both the Administrative Procedure Act (APA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) when it extended the “treated article” exemption under FIFRA to neonic-coated seeds.

Without getting to the merits of the issue, U.S. District Judge William H. Alsup found it “plausible” that EPA guidance issued in 2013 qualifies as “final agency action,” and is thus subject to judicial review.

EPA argued that the 2013 Guidance, “at least in regards to coated seeds, merely constituted a recommendation,” the judge said in his 9-page order declining to dismiss the case, as sought by EPA.

Alsup, whose court in California’s Northern District lies within the 9th Circuit, said that in that circuit, similar environmental cases have been decided only after full review of the Administrative Record – in this case, all the materials involved in the agency’s decisionmaking process for the 2013 guidance.

That document, titled, “Guidance for Inspecting Alleged Cases of Pesticide Related Bee Incidents,” found that “[t]reated seed (and any resulting dust-off from a treated seed) may be exempted from registration under FIFRA as a treated article and as such its planting is not considered a pesticide use.”

EPA said that sentence is not a “definitive statement of the agency’s position” and thus did not constitute “final agency action.” But Alsup said “the current record does not support this conclusion as a matter of law.”

“This new policy was never promulgated in a formal regulation and did not undergo the typical process that would accompany a formal regulation,” Alsup said.

EPA had already exempted treated seed from FIFRA in 2003, when it expanded on its 1988 “treated article” exemption by stating that pesticide-coated seeds were pesticides under FIFRA, but would be exempt if treated with an already-registered pesticide whose effects did not “extend beyond the seed itself,” the judge said, putting the quotation in italics for emphasis.

The plaintiffs in the case allege that while the seeds absorb some of the neonic coating, the rest “is either scraped off the seeds and blown away as dust during machine planting, or sloughed off into the surrounding soil and groundwater,” according to their complaint.

“Uncontained dust and contamination from these coatings is killing honey bees by the many millions and imposing a potentially catastrophic hazard to aquatic systems across the nation,” their complaint says.

In addition to beekeepers Bret Adee, Jeff Anderson and David Hackenberg, plaintiffs include two farmers, Lucas Criswell and Gail Fuller, as well as the Pollinator Stewardship Council, Center for Food Safety, Pesticide Action Network North America, and American Bird Conservancy.

The judge also granted motions to intervene on the side of EPA from the American Seed Trade Association (ASTA), Agricultural Retailers Association (ARA), CropLife America, the National Corn Growers Association (NCGA), the National Association of Wheat Growers, the National Cotton Council of America, and the American Soybean Association.

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“Each intervenor has demonstrated a protectable interest,” Alsup found. “First, as demonstrated by the voluminous declarations accompanying the motion, CropLife members own more than two dozen neonicotinoid seed treatment registrations issued by the EPA through FIFRA. If plaintiffs obtain the relief they seek, seeds treated with these registered products will likely be removed from the market.”

NCGA CEO Chris Novak filed a declaration in support of intervention stating that “over 95 percent of corn seed planted in the United States is treated with a neonicotinoid pesticide.” The judge noted that “large portions of soybean, cotton, and wheat are also grown using treated seeds.”

As for the other groups, the judge said, “The ASTA represents approximately 740 companies that develop, produce, and distribute seeds in the United States and abroad. Of the seeds sold by these companies, 75 percent are treated with pesticides.”

The ARA “represents over 300 agricultural retailers and distributors who supply farmers and ranchers with products, including the sale of seed, nutrients, and crop protection products,” Alsup said.

The Administrative Record is due to be filed by June 30. Motions for summary judgment are due by Aug. 11.

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