The US EPA has initiated a public consultation involving the disputed expanded use registration of Corteva Agriscience's insecticide, sulfoxaflor, that it granted in 2019. The development follows the US Court of Appeals for the Ninth Circuit remanding the regulator's decision for further review in December last year.

The order had ruled that the Agency's move was in contravention with guidelines set under the country's Endangered Species Act (ESA), as well as the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) as it failed to conduct the mandated public consultation before registering the insecticide. The Court had handed the Agency a 180-day deadline to complete pending procedures concerning the registration, including a public consultation, as well as consultations with the US Fish and Wildlife Service and the nation's National Marine Fisheries Service.

In its outreach to the public, the EPA has sought comments on its 2019 decision that restored certain uses of sulfoxaflor that were vacated in 2015 following a Ninth Circuit ruling that flagged its failure to adequately assess the ai's potential harm to bees. These include use of the insecticide on crops that are attractive to bees, such as citrus fruits, soybeans, strawberries, cucurbit vegetables and cotton. The Agency argues that the action was implemented following an "extensive risk analysis, including review of one of the agency's largest datasets on the effects of a pesticide on bees".

The consultation also focuses on the removal of certain risk mitigation measures put in place in 2016, including a 12-foot (3.6 m) on-field aerial buffer, tank mix restriction, and limitations on post-bloom use of sulfoxaflor-based products on crops such as pome and stone fruits, potatoes, berries and canola, among others.

Comments on the matter must be submitted by March 27th.

Legal turmoil

The end of last year saw the Ninth Circuit dismissing the EPA's claim that its inability to comply with the ESA stems from its lack of resources. Although the Court refused to vacate the 2019 registration of sulfoxaflor citing probable harm to the environment, besides disruption to the agriculture industry, it observed that the "EPA cannot flout the will of the Congress - and of the people - just because it thinks it is too busy or understaffed".

The decision to uphold the insecticide's registration aligned with the Court's observation in January 2022 that removing it from the market would prompt farmers to switch back to older pesticides that were sprayed more often and were more harmful to the environment.

While the Ninth Circuit rated the Agency's reasons for not making an effects determination of the insecticide as "unpersuasive", it noted that the EPA, seeking remand, has offered to "explicitly address why the economic and social costs of the registration amendments, on balance support registration".

However, in January this year, the EPA questioned the Court's order, arguing that the 180-day deadline was "not feasible". The regulator said that it is "able to and intends to" meet the requirements on or before the deadline but it does not read the Court's decision as requiring completion of ESA consultation by the 180-day deadline.

"Respectfully, EPA submits such a reading would impose a non-feasible deadline on it given that consultation must proceed with the two expert wildlife agencies—the United States Fish and Wildlife Service and the United States National Marine Fisheries Service—who are not parties to this litigation, and whose activities are not under the control of EPA and cannot be directed by EPA," the Agency said. "EPA respectfully requests clarification so that EPA can ensure it properly understands the Court's decision and determine whether to file a motion for rehearing. Should the Court disagree with EPA's reading, Respondents intend to file for rehearing," it added.

Prolonged dispute

The legal debacle involving sulfoxaflor stretches back to 2013, when the EPA granted Corteva legacy business Dow AgroSciences an unconditional registration for the ai, allowing its use on an array of crops for the control of aphids and tarnished plant bugs (Lygus lineolaris). That litigation, brought by a coalition led by the Center for Food Safety, had resulted in upending of the insecticide's registration in 2015, with the Ninth Circuit concluding that the Agency had relied on "flawed and limited data" when it issued the approval. Consequently, it ordered the Agency to vacate the registration and obtain further data regarding the effects of sulfoxaflor on bees.

To comply with the judgement, the EPA revoked Dow's registration of sulfoxaflor in November 2015, and granted an amended approval in October next year for uses on crops that are not attractive to bees. The new licence imposed several restrictions, including buffer zones and prohibitions on tank mixing.

However, in July 2019, the Agency scrapped those mitigation measures and reinstated approvals for use of sulfoxaflor on crops preferred by bees - namely citrus, cotton, cucumbers, soybeans, squash, strawberries and watermelons. The registration order also permitted new uses on several grains, including millet and oats, as well as on alfalfa, cacao, maize, pineapples, sorghum and tree plantations.

At that time, Agency officials had said that sulfoxaflor's benefits to growers far outweighed its risks and pointed to more than a dozen new industry studies that found little potential harm to pollinators and no requirement for the past restrictions.

Biological evaluation

In July 2022, the EPA released its draft biological evaluation (BE) of sulfoxaflor, underlining the potential effects the ai could have on threatened or endangered species and their habitats, and initiated a public consultation on the matter.

This article was published by S&P Global Commodity Insights and not by S&P Global Ratings, which is a separately managed division of S&P Global.