Attorney General Becerra Files Amicus Brief Opposing EPA Attempt to Delay Review of Lawsuit Challenging Improper Registration of Toxic Pesticide

Monday, December 7, 2020
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SACRAMENTO – California Attorney General Xavier Becerra today, leading a multistate coalition, filed an amicus brief opposing the Environmental Protection Agency’s (EPA) attempt to delay review of a lawsuit challenging its improper registration process for new uses of sulfoxaflor. Sulfoxaflor is a pesticide that, due to its toxicity, poses risks to pollinators – like bees – that are essential to California’s agriculture and ecosystem. In the amicus brief, the coalition argues that the EPA’s motion for remand without vacatur would unreasonably and indefinitely delay review of critical Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) claims in this and future cases.  

“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 Attorney General 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.”

Under FIFRA, all pesticides must receive regulatory approval from the EPA before their use. Before registering a pesticide, the EPA reviews human and environmental safety information to determine whether the pesticide will cause “unreasonable adverse effects on the environment.” Sulfoxaflor was originally registered in 2013, however, a successful court challenge reversed its registration until its manufacturer, Dow Chemical, submitted additional evidence of its effect on pollinators. Studies subsequently showed the pesticide’s toxicity to bees. 

Despite this, on July 12, 2019, the EPA suddenly issued pesticide registrations for numerous new uses of sulfoxaflor and removed restrictions on its use and mitigation measures that had previously been in place. The Center for Biological Diversity and the Center for Food Safety filed a lawsuit in the 9th Circuit on August 20, 2019, and Earthjustice filed a lawsuit on behalf of beekeeping organizations shortly thereafter. In September 2020, Attorney General Becerra and a coalition of states filed an amicus brief in support of the challenge.

Attorney General Becerra, leading a similar coalition, today filed an amicus brief challenging the EPA’s motion to remand the case back to the agency so that it can correct its violation of the Endangered Species Act. The EPA, in its motion, acknowledges that it would not be able to begin its review of sulfoxaflor under the Endangered Species Act until June 2025 at the earliest. If granted, the EPA’s motion would blaze a path for the EPA to frustrate FIFRA review of future pesticide registration decisions by allowing the EPA to violate the Endangered Species Act, admit the violation, and move for remand without vacatur, indefinitely delaying review of the FIFRA decision while potentially dangerous and toxic chemicals remain in the marketplace.

In the amicus brief, the coalition argues that the District Court should deny the EPA’s motion to remand because:

  • 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 Endangered Species Act;
  • Granting the motion would invite the EPA to circumvent FIFRA review of its future pesticide registration decisions;
  • States rely on judicial review of the EPA's pesticide registration decisions to safeguards states’ resources, public health, economies, and ecosystems; and
  • Proceeding to the merits would be the most efficient way to resolve the issues in this case. 

Attorney General Becerra is joined by the attorneys general of Hawaii, Maryland, Massachusetts, Minnesota, New Jersey, New York, New Mexico, Oregon, Vermont, and Washington in filing the amicus brief.

A copy of the amicus brief can be found here.

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