Tossing claims by environmentalists, federal judge backs EPA over pesticide-coated seeds

SAN FRANCISCO (CN) — A federal judge has granted partial summary judgment to the Environmental Protection Agency in its dispute with environmental groups over the use of seeds treated with pesticides.

Two nonprofits sued the Environmental Protection Agency in 2023 over what they called the agency’s failure to regulate pesticide-coated seeds. That came after the EPA in 2022 denied a petition seeking to require that treated seeds be registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

The plaintiffs, the Center for Food Safety and Pesticide Action Network, claimed that the EPA’s denial of the petition was arbitrary and that the agency abused its authority and did not use the best available data when making its decision to exempt coated seeds from FIFRA.

These seeds are typically coated with a class of insecticides called neonicotinoids, which target the central nervous system of insects. They are believed to be harmful to bee colonies, as well as birds and butterflies. They could also contaminate water.

According to the complaint, crops grown from pesticide-coated seeds — including corn, soybeans and sunflower seeds — cover 147 million acres of farmland in the United States, or nearly half of all cultivated cropland. At least 90% of all corn grown in the U.S. comes from coated seeds.

Though pesticide sprays are regulated by the EPA, pesticide-treated seeds are not, since they fall under the agency’s “treated article exemption.”

The treated article exemption means that unlike pesticide sprays, coated seeds do not have to be registered with the EPA and have no label.

In a 34-page ruling on Wednesday night, Senior U.S. District Judge Susan Illston, a Bill Clinton appointee, wrote that the EPA was acting with the best information it had available when it denied the petition in 2022.

“The EPA’s interpretation of its own regulation is reasonable and owed deference," Illston wrote. “The EPA’s petition denial did not fail to consider relevant evidence. Lastly, to the extent that the EPA lacks certain data, plaintiffs must challenge these gaps in an alternate proceeding.”

The environmental groups tried three different arguments to support their claim that the EPA’s petition denial was arbitrary and capricious.

They argued that the EPA improperly interpreted the Treated Article Exemption to include neonicotinoid treated seeds. They contended the petition denial should be set aside because the EPA ignored documents and evidence in its review. Last but not least, they said the petition denial was arbitrary and capricious because the EPA lacks important impact assessments of neonicotinoid seeds.

In court documents, they cited submitted comments, academic articles and other record materials that they said the EPA did not consider in its petition denial.

Illston was unmoved.

“The Court has reviewed the record materials cited by the plaintiffs and finds that they raise the same areas of concern as the petition, with most of these materials highlighting risks to pollinators or aquatic contamination,” she wrote. “The EPA’s petition denial addresses aquatic contamination and honey bee health. While the plaintiffs may not be satisfied with the EPA’s response, the agency has not ‘entirely failed to consider an important aspect of the problem.’”

Federal courts have traditionally deferred to agency interpretations of their own regulations, Illston noted.

“The EPA’s definitive interpretation in the formal petition denial is a ‘fair and considered’ judgment and ‘within the zone of ambiguity allowed by the text,’” Illston wrote, referring to the Treated Article Exemption. “Thus, the Court defers to the agency’s interpretation.”

Lawyers for the environmental groups did not respond to requests for comment. Counsel for the EPA declined to comment on the ruling.