By Todd Neeley
DTN Staff Reporter
OMAHA (DTN) -- A federal court Thursday rejected the U.S. Environmental Protection Agency's unconditional approval of Dow AgroScience's insecticide sulfoxaflor. How that ruling will affect growers using the product in 2015 remains to be seen.
The U.S. Ninth Circuit Court of Appeals ruled EPA did not have enough data when the agency granted unconditional approval of sulfoxaflor in 2010. The active ingredient found in the trademarked products "Transform WG" and "Closer" is used to kill insects in soybeans, cotton, sorghum, citrus fruit trees, various vegetables and other crops.
The court, which historically is sympathetic to legal challenges to pesticides, ruled EPA should not have granted an unconditional approval and instead should have perhaps granted conditional approval, which would allow the limited use of the insecticide.
"We therefore vacate the EPA's unconditional registration of sulfoxaflor and remand for the EPA to obtain further studies and data regarding the effects of sulfoxaflor on bees, as required by EPA regulations," the court said in its ruling.
The insecticide has been approved for emergency use in many states and is becoming one of few options in some regions.
In May 2015, EPA granted Section 18 emergency use exemptions in Kansas for the application of Transform WG insecticide for control of sugarcane aphids in sorghum. Section 18 approvals previously were issued in Alabama, Arkansas, Georgia, Louisiana, Mississippi, Missouri, Oklahoma, South Carolina and Texas for 2015.
Cotton growers in the South have been using the product to combat plant bugs. According to a Dow news release, the company's Transform product is the only member of the new class of IRAC Group 4C chemistry that gives farmers a needed rotation option for insect resistance management.
Angus Catchot, Mississippi State University entomologist, told DTN it remains to be seen what the court ruling will mean in the countryside.
The product has become an important alternative for combating pests in grain sorghum and cotton, he said.
"It has replaced harsher sprays of organophosphate in cotton for control of tarnished plant bug," Catchot said. The product has been one of two products to help control outbreaks of sorghum aphid. "Transform has only a 14 days pre-harvest interval, so it has been an extremely important tool for managing aphid buildups late season.
"It sounds like the courts made a ruling and EPA has to respond. Until they respond, the product can be sold and used. It may take several weeks for response. Maybe long enough to get through this season hopefully. I was in Kansas this week and the aphids are horrible in the southeast corner counties," he said.
The court found the EPA's decision to register sulfoxaflor was "based on flawed and limited data, the EPA's unconditional approval was not supported by substantial evidence."
The court vacated the EPA's action "because given the precariousness of bee populations, leaving the EPA's registration of sulfoxaflor in place risked more potential environmental harm than vacating it."
In the opinion written by Judge Mary M. Schroeder, the court said Dow has made claims about the ingredient that were not backed up by data provided to EPA.
"As part of its registration application, Dow made a number of claims regarding the benefits to using sulfoxaflor over other comparable pesticides," the court said. "These claims and the support for them are not in the public record. The public record does indicate that a number of commenters to the EPA's proposed conditional registration decision made similar claims regarding the need for and benefits of using sulfoxaflor. Dow also submitted studies and data about the effects of sulfoxaflor on various species, including bees.
"The EPA analyzed the studies submitted by Dow using a new framework it had recently developed to better analyze the risks to bees, in light of growing concerns about the rapid decline in bee populations."
In a brief statement issued Thursday, Dow said it would explore its options in light of the court's ruling.
"Dow AgroSciences respectfully disagrees with the Ninth Circuit's conclusion that EPA's registration of products containing sulfoxaflor should be vacated," Dow said. "Dow AgroSciences will work with EPA to implement the order and to promptly complete additional regulatory work to support the registration of the products. Dow AgroSciences is also considering its available options to challenge the court's decision."
On its website, http://tinyurl.com/…, EPA explained why it approved the use of sulfoxaflor.
"In brief, the key is to limit exposure," EPA said. "The EPA does not allow sulfoxaflor application to plants that are attractive to bees for three days before bloom, during bloom, or until petal fall for the majority of crops. For the remaining bee-attractive crops, we also added advisory language to the labels to notify known beekeepers of scheduled application and to apply these products in early morning or late evening.
"Since bees are typically only present when plants are in bloom, and the toxicity of sulfoxaflor residue is primarily a concern when the residue is freshly applied (the residue generally dissipates within three days), we expect that the application restrictions we put in place will protect bee colonies from harmful exposure."
In its ruling, the court said it appears EPA didn't fully consider the effects of residue in studies provided by Dow during the registration process.
"The EPA identified several shortcomings in the residue studies, that made it difficult to determine whether the residue results were accurate and suggested the results actually understated the risk," the court said. "For example, some data was collected several days after pesticide application and at a rate lower than proposed."
The lawsuit was filed by Earthjustice on behalf of bee industry interests including Pollinator Stewardship Council, American Honey Producers Association, National Honey Bee Advisory Board, American Beekeeping Federation, Thomas R. Smith, Bret L. Adee and Jeffery S. Anderson.
Earthjustice lead council Greg Loarie said in a statement the court's ruling will help improve bee health.
"Our country is facing widespread bee colony collapse, and scientists are pointing to pesticides like sulfoxaflor as the cause," he said. "The court's decision to overturn approval of this bee-killing pesticide is incredible news for bees, beekeepers and all of us who enjoy the healthy fruits, nuts and vegetables that rely on bees for pollination."
Todd Neeley can be reached at [email protected]
Follow him on Twitter @ToddNeeleyDTN
(GH/AG)
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