Summarized by:

  • Court: 9th Circuit Court of Appeals Archives
  • Area(s) of Law: Administrative Law
  • Date Filed: 12-21-2022
  • Case #: 19-72109; 19-72280
  • Judge(s)/Court Below: Lee, J. for the Court; O'Scannlain, J.; Miller, J.
  • Full Text Opinion

Before it can register a pesticide, EPA must conduct a “cost-benefit analysis to ensure that there is no unreasonable risk created for people or the environment from a pesticide.” Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1032 (9th Cir. 2005).

Dow Agrosciences sought approval from the EPA to register pesticide sulfoxaflor, in compliance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA). Initially, the EPA registered sulfoxaflor for limited use after Dow’s limited data on the effects sulfoxaflor had on honey bees; however, later EPA registered sulfoxaflor unconditionally without going through the process of notice and comment to amend the registration. Petitioners brought a petition for review to the Ninth Circuit Court of Appeals, challenging the amended registration of pesticide sulfoxaflor. Petitioners argued that the EPA violated ESA and FIFRA. The Ninth Circuit held that the EPA violated ESA as EPA did not make an effects determination for sulfoxaflor in connection to honey bees, reasoning that the determination is necessary and the EPA cannot disregard its statutory obligation because it is busy or lacks resources. The Court also held that EPA violated FIFRA, reasoning that because the amended registration provided a new usage for sulfoxaflor, the EPA should have conducted a notice and comment period before approving the amended registration of sulfoxaflor. Petitioners' petitions for review were granted in part and denied in part and case were remanded back to the EPA.

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