Pollinator Stewardship Council v. U.S.E.P.A.

When applying an agency generated standard, the court must apply the standard set out by the agency and determine if the conclusion of the matter is supported by the agency standard, as well as substantial evidence.

The Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) prohibits the use or sale of pesticides without the approval of the Environmental Protection Agency (“EPA”). FIFRA enables the EPA to deny pesticide registrations in order to prevent unreasonable adverse effects to people or the environment. In 2010, Dow Agrosciences LLC applied for approval under FIFRA of pesticides containing sulfoxaflor. In evaluating sulfoxaflor, the EPA used the Pollinator Risk Assessment Framework. The assessment revealed that the median lethal doses found in sulfoxaflor were extremely toxic to bees. The risk quotients exceeded the 0.4 level at which “the EPA express[ed] concerns serious enough to require further testing.” There were issues as to the accuracy of the tests performed, causing the EPA to conclude that additional studies were needed. Despite the lack of any further testing being conducted, the EPA later unconditionally registered sulfoxaflor, justified by various user instruction mitigation measures. Several commercial bee keepers challenged the EPA’s approval of insecticides containing sulfoxaflor. On review, the Ninth Circuit held that it was only required to uphold EPA decisions supported by substantial evidence when considered on the record as a whole. The panel held that the studies’ results showed insufficient and inconclusive data on the effects of sulfoxaflor. The panel held that an agency’s action must be upheld, if at all, on the basis articulated by the agency’s standards. The panel found that the EPA’s unconditional registering of sulfoxaflor in the absence of sufficient data documenting the risk to bees was inappropriate given the agency’s own risk assessment standards. The panel determined that the EPA’s decision to unconditionally register sulfoxaflor was based on flawed and limited data, and the approval was not supported by substantial evidence. The panel vacated the registration and remanded for the EPA to obtain further studies. VACATED and REMANDED.