Endangered Species Law & Policy

On December 21, 2022, the U.S. Court of Appeals for the Ninth Circuit ruled that the Environmental Protection Agency’s (EPA) 2019 registration of the pesticide “sulfoxaflor” violated the Endangered Species Act (ESA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) by unconditionally expanding allowed uses of the pesticide to blooming crops and removing certain restrictions. The court held that the agency violated the ESA by not making an “effects” determination to trigger “consultation” with a wildlife agency and violated FIFRA by failing to submit the action for notice and comment. The court remanded the registration back to EPA to make an “effects” determination and proceed with consultation under section 7(a)(2) of the ESA, issue the registration for public notice and comment, and determine whether the registration will cause “unreasonable adverse effects” to beekeepers.

In 2019, EPA unconditionally registered sulfoxaflor, adding blooming crops and other new uses, without determining the action’s effects on listed species or designated critical habitat for such species and then consulting with the appropriate wildlife agency as required by the ESA, and without issuing the rule for public notice and comment as required by FIFRA. Because EPA had not determined whether its action “may affect a listed species or critical habitat,” and then did not fulfill the ESA’s consultation requirement, the court held that EPA’s 2019 sulfoxaflor registration violated the ESA. The court did not accept EPA’s explanation that it lacked the resources to conduct the consultation process.

EPA also violated FIFRA’s requirement of public notice and comment in the event of a new ingredient or new use of a pesticide. Though EPA tried to argue that a previous but later vacated registration accounted for the blooming crops use and removal of restrictions, the court looked to EPA documents that repeatedly refer to the 2019 registration as “new uses” in holding that the EPA’s 2019 registration of sulfoxaflor violated FIFRA.

The court also noted that EPA’s errors, though serious, do not warrant vacatur because the agency is likely to issue the same registration once it goes through the ESA consultation process. Failure to provide notice and comment by itself does not require vacatur when the agency is likely to adopt the same rule on remand. The court also considered that vacating the rule could result in possible environmental harm due to sulfoxaflor’s relatively favorable level of toxicity compared to alternatives, and noted that vacatur would result in wasted public resources and disruption to the agricultural industry.