The US EPA has been ordered by a federal appeals court to complete an evaluation of the insecticide, cyantraniliprole's, effects on species listed under the country's Endangered Species Act (ESA) within its internal September 2023 deadline. The US Court of Appeals for the District of Columbia Circuit has directed the Agency to submit status updates on the task every 60 days until the end of the deadline, adding that progress on the matter will be monitored.

The order is the latest development in a protracted legal battle that broke out in 2014 shortly after cyantraniliprole was registered in the US. The insecticide's registration covers agricultural uses for the protection of citrus trees and blueberry bushes, among other crops, besides some residential applications. The active ingredient's registrants include FMC and Syngenta Crop Protection.

The petitioners - US environmentalist group Center for Biological Diversity (CBD), and advocacy group Center for Food Safety (CFS) - allege that the EPA had failed to review cyantraniliprole's potential risks to endangered species prior to granting it registration. The Court terms the delay as "eight years of outright non-compliance", hauling up the Agency for dereliction of a "clear duty" to perform this task, besides the parallel duty to obey its 2017 order to assess the ai's impacts on endangered species.

Loss of faith

Although the Agency has expressed its intent to finish the review by September 2023, the ruling notes that there is "reason to doubt" the regulator's commitment, especially as it anticipates exceeding the deadline on account of "time consuming notice-and-comment rulemaking". It also points out the EPA's acknowledgement that it has no statutory obligation to stick to deadlines, adding that "a writ of mandamus is the only way to compel EPA to perform its clear duties in this case".

While the petitioners originally wanted cyantraniliprole's "faulty registration" to be automatically vacated in case the EPA failed to conclude its effects determination within six months of the Court's 2017 order, the judgment reveals that they withdrew the demand upon the Agency committing to the September 2023 deadline. Furthermore, the Court determined that such a move "would 'temporarily defeat … the enhanced protection of the environmental values covered by' the registration and encourage the use of older, more toxic pesticides in cyantraniliprole's place". It notes that at the present stage, the petitioners "seek only a court order enforcing that deadline [September 2023]".

Cyantraniliprole's registrants have also argued against vacating its registration, terming any such action as "disruptive".

Censuring the regulator for not acting on its 2017 order to replace the registration with one that was "consistent" with its opinion, the Court rates the granted mandamus as an "extraordinary remedy, reserved only for the most transparent violations of a clear duty to act".

Additionally, the judgment empowers the petitioners to renew their motion and call for annulling cyantraniliprole's registration in case the Agency fails to make good on the 2023 deadline.

Dubious classification

In 2013, the EPA concluded that cyantraniliprole has a "potential for direct adverse effects to federally listed threatened/endangered species". However, it went ahead with registering the ai the following year, stating that the insecticide's risks "were found not to be unreasonable when weighed against the benefits it provides". Moreover, the decision was finalised without consulting the US National Marine Fisheries Service (NMFS) and the Fish and Wildlife Service.

The Agency went so far as to classify cyantraniliprole as a "reduced risk" pesticide that has a lower potential for harm to human health and the environment, although its own risk assessment pointed out that the ai is "slightly to very highly toxic to estuarine/marine invertebrates; highly toxic to benthic invertebrates; and highly to very highly toxic to terrestrial insects".

It also said that the ai could become an alternative to several insecticide classes, including organophosphates, carbamates, pyrethroids and some neonicotinoids.

Petitioners welcome move

CBD rates the judgment as a "vital victory" in protecting pollinators such as Fender's blue butterflies (Icaricia icarioides fenderi) and rusty-patched bumblebees (Bombus affinis). It cites data from the US Geological Survey to claim that uses of cyantraniliprole have "increased exponentially" since its registration, adding that the EPA has "proven over and over with pesticides, the only way the agency will do its job is when forced by a court".

Upon Crop Science Market Reporting reaching out, FMC said that it was "pleased" with the outcome, and that it will "continue to participate in the EPA's process as an applicant".

Process overhaul

In May, the Agency released its maiden workplan to address challenges involving the protection of endangered species from pesticides. The regulator anticipates the development enabling it to focus on protecting species under the country's ESA, while minimising regulatory impacts to pesticide users, and supporting the development of safer pest control technologies. Furthermore, the EPA states that the workplan will aid in the timely completion of evaluations based on the country's Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).

The EPA notes that the decision was prompted by recurring lawsuits it had faced on account of shortfalls in meeting obligations under the ESA and FIFRA, adding that for most of its history, the regulator "has met these duties for less than 5% of its FIFRA decisions". It says that this has resulted in an "unsustainable and legally tenuous situation" with over 20 ESA lawsuits against the Agency. The new workplan seeks to address the uncertainty such legal wrangling creates for farmers and other pesticide users, besides leading to "unnecessary expenses and inefficiencies" for the EPA.

EPA administrator Michael Regan has hailed the development as a "blueprint" for the EPA's future operations.

In November, the Agency issued an update to the workplan.

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.