On December 7, 2020, the attorneys general for 11 states filed an amicus brief with the Ninth Circuit Court of Appeals opposing EPA’s remand motion concerning the pesticide sulfoxaflor. EPA’s motion asked the court to allow revision of its registration for sulfoxaflor without vacating it. EPA initially registered sulfoxaflor for use in 2013 with limitations on its use due to its toxicity to bees and the potential risk to birds. In 2019, EPA registered new uses for sulfoxaflor, including application to alfalfa, corn, cacao, grains, pineapple, strawberries. At issue in the litigation are the following:
- Approval of sulfoxaflor uses without consideration of its effects on endangered species after 2015 Ninth Circuit Court ruling to vacate the registration.
- Need for consideration of sulfoxaflor’s effects on endangered species in its registration.
- Need for consultation with expert agencies.
- Whether the Endangered Species Act (ESA)-protected species are endangered in violation of EPA’s FIFRA mandate that its pesticide use approvals not result in “unreasonable adverse effects on the environment.”
Granting EPA’s motion would allow sulfoxaflor use for at least seven years.
The amicus brief states EPA’s motion for remand without vacatur is unwarranted because EPA has demonstrated ongoing and systematic failure to consult under the ESA. The attorneys general noted that Congress ordered EPA to report on its ESA consultation progress in 2014 and 2018. The brief stressed that the backlog of pesticide chemicals for review is already quite long, and that EPA has admitted that the evaluation of sulfoxaflor on remand would not begin until June 2025, at the earliest. Concern that without proper foundational review by EPA, the burden of ensuring pesticide safety passes down to the states was emphasized by the brief. Finally, the brief argues that “proceeding to the merits would most efficiently resolve the issues in this case.”