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Case No. 13-72346______________________UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT______________________POLLINATOR STEWARDSHIP COUNCIL, et al.,Petitioners,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,Respondents,
and
DOW AGROSCIENCES,
Respondent-Intervenor.
______________________On Petition for Review of an Order of theUnited States Environmental Protection Agency______________________

BRIEF OF AMICI CURIAE CENTER FOR FOOD SAFETY; NORTHEASTORGANIC FARMING ASSOCIATION INTERSTATE COUNCIL;NORTHEAST ORGANIC FARMING ASSOCIATION, MASSACHUSETTS
CHAPTER, INC.; NORTHEAST ORGANIC FARMING ASSOCIATION
OF RHODE ISLAND, INC.; NORTHEAST ORGANIC FARMING
ASSOCIATION OF NEW YORK, INC.; MAINE ORGANIC FARMERSAND GARDENERS ASSOCIATION; DEFENDERS OF WILDLIFE;
FRIENDS OF THE EARTH; CENTER FOR ENVIRONMENTALHEALTH; CONSERVATION LAW FOUNDATION; MIDWEST ORGANICAND SUSTAINABLE EDUCATION SERVICE; BEYOND PESTICIDES;PESTICIDE ACTION NETWORK OF NORTH AMERICA; THE SIERRA
CLUB; NATIONAL FAMILY FARM COALITION; AND
AMERICAN BIRD CONSERVANCYIN SUPPORT OF PETITIONERS SEEKING REVIEW___________________CENTER FOR FOOD SAFETY
George A. Kimbrell
Sylvia Shih-Yau Wu
303 Sacramento St., 2nd Floor
Tel: (415) 826-2770 / Fax: (415) 826-0507
San Francisco, CA 94111
Counsel for Amici Curiae

Dated: December 13, 2013

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TABLE OF CONTENTSTABLE OF CONTENTS ........................................................................................... i
TABLE OF AUTHORITIES .................................................................................... ii
CORPORATE DISCLOSURE STATEMENT ...................................................... vii
INTERESTS OF THE AMICI CURIAE ....................................................................1
SUMMARY OF ARGUMENT ...............................................................................12
ARGUMENT ...........................................................................................................15I.

SULFOXAFLOR AND OTHER SYSTEMICNEONICOTINOID PESTICIDES ..............................................................15II.

EPA HAS NOT SHOWN BY SUBSTANTIAL EVIDENCE
THAT SULFOXAFLOR’S REGISTRATION WILL NOT
CAUSE UNREASONABLE ADVERSE EFFECTS ON THE
ENVIRONMENT .......................................................................................19
A. EPA ignores the threats that systemic pesticides pose to foodproduction and security, and the costs they impose on the
agricultural economy. ...............................................................................20
B. EPA failed to consider the impacts of systemic pesticides on
the environment and its ecosystems. ........................................................28

CONCLUSION ........................................................................................................31
CERTIFICATE OF COMPLIANCE WITH RULES 29(c)(5), 29(d), 32(a) ..........33iCase: 13-72346

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TABLE OF AUTHORITIESPAGE(S)FEDERAL CASES
Nw. Food Processors Ass’n v. Reilly,
886 F.2d 1075 (9th Cir. 1989) ............................................................................ 19
Port of Seattle v. Fed. Energy Regulatory Comm’n,
499 F.3d 1016 (9th Cir. 2007) ............................................................................ 21
Universal Camera Corp. v. Nat’l Labor Relations Bd.,
340 U.S. 474 (1951) ............................................................................................ 20
STATUTES
7 U.S.C. § 136(bb) ............................................................................................passim
7 U.S.C. § 136a(c)(5)(C)....................................................................................14, 19
7 U.S.C. §136n ......................................................................................................... 19
7 U.S.C. § 136n(b) ................................................................................................... 28
16 U.S.C. § 1536(a)(2) ............................................................................................. 27
LEGISLATIVE HISTORY
S. Rep. 970, 92d Cong. 2d Sess., reprinted in 1972 U.S.C.C.A.N.
4092..................................................................................................................... 27
OTHER AUTHORITIESAlexandra-Maria Klein et al., Importance of Pollinators in Changing
Landscapes for World Crops, 274 Proc. Royal Soc’y B: BiologicalSci. 303, 303–313 (2007).................................................................................... 22
Andrea Tapparo et al., Assessment of the Environmental Exposure of
Honeybees to Particulate Matter Containing Neonicotinoid
Insecticides Coming From Corn Coated Seeds, 46 Envtl. Sci. &Tech. 2592, 2592-99 (2012) ............................................................................... 15ii

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PAGE(S)
OTHER AUTHORITIES, CONT’D
Ann Brody Guy, Univ. Cal. Berkeley, Wild Pollinators Worth up to$2.4 Billion to Farmers, Study Finds, Univ. Cal. Berkeley News
Center (June 20, 2011),
http://newscenter.berkeley.edu/2011/06/20/wild-pollinators-worthbillions-to-farmers/ ............................................................................................. 27
Bee Informed P’ship, Winter Loss Survey 2012 – 2013: Preliminary
Results (May 2, 2013), http://beeinformed.org/2013/05/winterloss-survey-2012-2013/ ...................................................................................... 25
Cal. Dep’t Food & Agric., California Agricultural Production
Statistics, http://www.cdfa.ca.gov/statistics/ (last visited Dec. 13,
2013) ................................................................................................................... 27
Cédric Alaux et al., Interactions Between Nosema Microspores and a
Neonicotinoid Weaken Honeybees (Apis mellifera), 12 Evntl.
Microbiology 774, 774-782 (2010) ................................................................... 20
Comments from Ctr. for Food Safety, to EPA Office of Pesticide
Programs, Re: Proposed Conditional Registration of Sulfoxaflor(Feb. 12, 2013), Docket No. EPA-HQ-OPP-2010-0889-0363,
available at
http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPP2010-0889-0363 ............................................................................................27, 30
Dave Goulson, An Overview of the Environmental Risks Posed by
Neonicotinoid Insecticides 50 J. Applied Ecology 977, 977-87(2013) .................................................................................................................. 16
Elaine Evans et al., The Xerces Soc’y for Invertebrate Conservation,
Status Review of Three Formerly Common Species of Bumble Beein the Subgenus Bombus (2009) available at
http://www.xerces.org/wp-content/uploads/2009/03/xerces_2008_b
ombus_status_review.pdf ................................................................................... 26iii

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PAGE(S)
OTHER AUTHORITIES, CONT’D
EPA, USDA and EPA Release New Report on Honey Bee Health,Newsroom (May 2, 2013),
http://yosemite.epa.gov/opa/admpress.nsf/0/E04602A5E7AA0606
85257B5F004A12D3 ....................................................................................12, 22
Eur. Comm’n, Bees & Pesticides: Commission Goes Ahead with Plan
to Better Protect Bees (May 30, 2013),
http://ec.europa.eu/food/animal/liveanimals/bees/neonicotinoids_en.htm ................................................................................................................... 18
Eur. Food Safety Auth., EFSA Identifies Risks to Bees from
Neonicotinoids (Jan. 16, 2013),
http://www.efsa.europa.eu/en/press/news/130116.htm ...................................... 18
Food & Agric. Org. of the U.N., Protecting the Pollinators, Agric. &Consumer Prot. Dep’t Spotlight (Dec. 2005),
http://www.fao.org/ag/magazine/0512sp1.htm .................................................. 13
Hoy Carman, The Estimated Impact of Bee Colony Collapse Disorderon Almond Pollination Fees, 14 Agric. & Res. Econ. Update 9(2011), available at
http://giannini.ucop.edu/media/are-update/files/articles/V14N5_4.p
df ..................................................................................................................24, 25
Janet N. Abramovitz, Putting a Value on Nature’s “Free” Services 11
World Watch Mag. 10, 16 (1998), available atwww.worldwatch.org/system/files/EP111B.pdf ................................................ 12
Jeffery S. Pettis et al., Pesticide Exposure in Honey Bees Results inIncreased Levels of the Gut Pathogen Nosema, 99
Naturwissenschaften 153, 153-58 (2012) ........................................................... 16
Jennifer Hopwood et al., The Xerces Soc’y for Invertebrate
Conservation, Are Neonicotinoids Killing Bees? (2012), available
at http://www.xerces.org/wp-content/uploads/2012/03/AreNeonicotinoids-Killing-Bees_Xerces-Society1.pdf ...............................15, 16, 21iv

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PAGE(S)
OTHER AUTHORITIES, CONT’D
Jeroen P. van der Sluijs et al., Neonicotinoids, Bee Disorders and theSustainability of Pollinator Services, 5 Current Op. Envtl.
Sustainability 293 (2013) ..............................................................................17, 29
Mickaël Henry et al., A Common Pesticide Decreases Foraging
Success and Survival in Honey Bees 336 Sci. 348, 348-50 (2012) .................... 20
Nicholas W. Calderone, Insect Pollinated Crops, Insect Pollinators
and US Agriculture: Trend Analysis of Aggregate Data for the
Period 1992–2009, 7 PLoS One 2 (2012) .......................................................... 23
Penelope R. Whitehorn et al., Neonicotinoid Pesticide Reduces
Bumble Bee Colony Growth and Queen Production, 336 Sci. 351(2012) ......................................................................................................16, 20, 28
Peter G. Kevan & Randolf Menzel, The Plight of Pollination and theInterface of Neurobiology, Ecology and Food Security, 32
Environmentalist 300 (2012) ........................................................................25, 29
Pierre Mineau & Cynthia Palmer, Am. Bird Conservancy, The Impactof the Nation’s Most Widely Used Insecticides on Birds (2013),
available at
http://www.abcbirds.org/abcprograms/policy/toxins/Neonic_FINA
L.pdf ..................................................................................................18, 20, 30, 31
Rebecca Chaplin-Kramer et al., Value of Wildland Habitat for
Supplying Pollination Services to Californian Agriculture, 33
Rangelands 33 (June 2011) ...............................................................22, 23, 26, 27
Renée Johnson, Cong. Research Serv., RL 33938, Honey Bee Colony
Collapse Disorder 1 (2010), available at
http://www.fas.org/sgp/crs/misc/RL33938.pdf .................................................. 12
Richard Gill et al., Combined Pesticide Exposure Severely Affects
Individual- and Colony-level Traits in Bees, 491 Nature 105, 10508 (2012) ............................................................................................................. 16v

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PAGE(S)
OTHER AUTHORITIES, CONT’D
Siyuan Lu et al., Design, Synthesis, and Particular BiologicalBehaviors of Chain-opening Nitromethylene Neonicotinoids with
Cis Configuration, 60 J. Agric. & Food Chemistry 322, 322-30(2012) .................................................................................................................. 20
Tahira Farooqui, A Potential Link Among Biogenic Amines-based
Pesticides, Learning and Memory, and Colony Collapse Disorder:
A Unique Hypothesis, 62 Neurochemistry Int’l 122, 132 (2012) ....................... 17
Takashi Matsumoto, Reduction in Homing Flights in the Honey Bee
Apis mellifera After a Sublethal Dose of Neonicotinoid
Insecticides, 66 Bull. Insectology 1, 1-9 (2013) ................................................. 16
The Associated Press, Paul Harvey, Talk-Radio Pioneer, Is Dead at
90, N.Y. Times, Feb. 28, 2009, available at
http://www.nytimes.com/2009/03/01/nyregion/01harvey.html. ........................ 13
USDA, Agric. Research Serv., Honey Bees and Colony Collapse
Disorder, http://www.ars.usda.gov/News/docs.htm?docid=15572(last modified Dec. 02, 2013) ............................................................................. 24
USDA, Nat’l Agric. Stat. Serv., 2013 California Almond Forecast(May 2, 2013), available at
http://www.nass.usda.gov/Statistics_by_State/California/Publications/Fruits_and_Nuts/201305almpd.pdf................................................................ 24
USDA, Report on the National Stakeholders Conference on Honey
Bee Health 1-2 (Oct. 15–17, 2012) ...............................................................12, 25
Vincenzo Girolami et al., Translocation of Neonicotinoid Insecticides
From Coated Seeds to Seedling Guttation Drops: A Novel Way ofIntoxication for Bees, 102 J. Econ. Entomology 1808, 1808-15(2009) .................................................................................................................. 15viCase: 13-72346

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CORPORATE DISCLOSURE STATEMENT
Amici, Center for Food Safety; Northeast Organic Farming Association
Interstate Council; Northeast Organic Farming Association, Massachusetts
Chapter, Inc.; Northeast Organic Farming Association of Rhode Island, Inc.;
Northeast Organic Farming Association of New York, Inc.; Maine Organic
Farmers and Gardeners Association; Defenders of Wildlife; Friends of the Earth;Center for Environmental Health; Conservation Law Foundation; Midwest Organicand Sustainable Education Service; Beyond Pesticides; Pesticide Action Networkof North America; The Sierra Club; National Family Farm Coalition; andAmerican Bird Conservancy are all nonprofit corporations, have no parent
corporations, and do not issue stock.

Respectfully Submitted,
Dated: December 13, 2013s/ George A. Kimbrell
George A. Kimbrell
Sylvia Shih-Yau Wu
CENTER FOR FOOD SAFETY
303 Sacramento St., 2nd Floor
San Francisco, CA 94111
Tel: (415) 826-2770
Facsimile: (415) 826-0507
Counsel for Amici CuriaeviiCase: 13-72346

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INTERESTS OF THE AMICI CURIAE
Amici are nonprofit, public interest organizations with missions ofsafeguarding public health, fostering sustainable agriculture, and protecting
the environment. To this end, Amici actively work on reducing the adverse
effects of pesticides and ensuring the health of pollinators.
Amici have strong interests regarding the decision of the United States
Environmental Protection Agency (EPA) to register sulfoxaflor, as
stakeholders whose interests and memberships will be harmed by EPA’s
approval of sulfoxaflor pesticide products. Further, Amici offer the Court abroader perspective surrounding this approval action as part of EPA’s larger
failings regarding systemic pesticides and their adverse impacts onpollinators.
Amici are nonprofit, public interest organizations with missions ofsafeguarding public health, fostering sustainable agriculture, and protecting
the environment. To this end, Amici actively work on reducing the adverse
effects of pesticides and ensuring the health of pollinators.
Amici have strong interests regarding the decision of the United States
Environmental Protection Agency (EPA) to register sulfoxaflor. Amici are
stakeholders whose interests and memberships will be harmed by the use of
sulfoxaflor pesticide products. Further, Amici offer the Court a broader

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perspective surrounding this approval action, as part of EPA’s larger failings
regarding systemic pesticides and their adverse impacts on pollinators.
Amicus Center for Food Safety (CFS) is a national nonprofit
organization dedicated to addressing the environmental, health, andsocioeconomic impacts of industrial agriculture, and promoting sustainable
alternatives. CFS represents over 375,000 members across the country,
including many farmers and beekeepers, as well as consumers. As part of its
mission, CFS has a multifaceted pollinator protection program that actively
works to reduce the adverse effects of toxic pesticides on pollinators. This
program utilizes scientific, policy, educational, legislative, regulatory, andgrassroots campaigns to spearhead action from government agencies,
policymakers, and the public, to protect food security and the environment
by requiring robust analyses of these pesticides’ adverse impacts, andsuspending or curbing their use as needed. CFS filed comments on EPA’s
proposed registration of sulfoxaflor.
Amicus Northeast Organic Farming Association Interstate Council(NOFA), established in 1972, is one of the oldest organic farming
organizations in the United States. NOFA is a federation of sevenindependent state chapters in New York, Vermont, New Hampshire,
Connecticut, Massachusetts, New Jersey, and Rhode Island with over 6000

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farmer, gardener, and consumer members—all of whom depend on a healthyand vibrant bee population for their food supply.
Amicus Northeast Organic Farming Association, Massachusetts
Chapter (NOFA/Mass) is a community that includes farmers, gardeners,
landscapers, and consumers working to educate members and the generalpublic about the benefits of local, organic systems based on complete cycles,
natural materials, and minimal waste for the health of individual beings,
communities, and the living planet. NOFA/Mass members care greatly
about the survival of bees, and advocate sustainable growing practices that
not only conserve but actually renew and improve the environment.
Amicus Northeast Organic Farming Association of Rhode Island(NOFA/RI), formed in 1990, is an organization of farmers, consumers,
gardeners, and environmentalists working to promote organic farming andorganic land care practices. NOFA/RI fosters a healthy relationship to thenatural world through educational workshops, advocacy, and participation in
local and regional events. NOFA/RI works to increase the acreage ofsustainably and organically managed land and to provide access to local,
organic food for all Rhode Islanders.
Amicus Northeast Organic Farming Association of New York(NOFA-NY), founded in 1983, is a statewide organization leading a growing

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movement of farmers, consumers, gardeners, and businesses committed topromoting sustainable, local, and organic food and farming. NOFA-NY
provides education, assistance, and support to regionally-based, sustainable
farmers to help them thrive; educates consumers about the value of buying
local, organic products; helps consumers connect with regionally-based
farmers; works to make local, organic food available to all people; andadvocates policies that support a sustainable food and farm system. NOFANY promotes the stewardship of the land and the lives that inhabit it.
Stewardship encompasses the long-term viability of our natural resourcebase; the health of consumers; the working conditions of farmers, theirfamilies, and workers; the needs of communities; and the welfare of farmanimals.
Amicus Maine Organic Farmers and Gardeners Association(MOFGA) has been a leader in the local foods movement since 1971. It is
the largest state organic agriculture organization in the country. A
membership base of 6500 families, individuals, farms, businesses, andnonprofits helps to significantly influence the conversation about food andfarming in the state. The purpose of MOFGA is to help farmers andgardeners grow local and organic food, fiber, and other crops; protect theenvironment; recycle natural resources; increase local food production;

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support rural communities; and illuminate for consumers the connection
between healthful food and environmentally-sound farming practices.
Amicus Defenders of Wildlife (Defenders) is a nonprofit organization
headquartered in the District of Columbia, with offices throughout theUnited States. With more than one million members and supporters aroundthe country, Defenders is one of the largest and most effective organizationsin the country advocating for the conservation of species and their habitat.
Defenders supports new approaches to wildlife conservation that will help
keep species from becoming endangered, and employs education, litigation,
research, legislation, and advocacy to defend wildlife and their habitat.
Defenders is particularly concerned about the impacts of systemic pesticides
on the environment and has worked for many years to ensure that wildlife
concerns are properly addressed in the pesticide registration process. The
aesthetic, recreational, professional, and organizational interests of
Defenders and its members, staff, and officers are impaired by EPA’s
registration of sulfoxaflor without due regard to its impacts on pollinatorsand other imperiled wildlife.
Amicus Friends of the Earth (FoE) is a national nonprofit
environmental organization that was founded in 1969. With offices in theDistrict of Columbia and Berkeley, California, and more than 340,000

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members and activists in all fifty states, FoE defends the environment andchampions a healthy and just world. FoE’s campaigns focus on promoting
clean energy and solutions to climate change, keeping toxic and risky
technologies out of the food we eat and products we use, and protecting
marine ecosystems and the people who live and work near them. FoE U.S.
is part of Friends of the Earth International, a global network representing
more than two million activists in seventy-four countries. As part of FoE’swork to promote a healthy, sustainable, and just food system, FoE isworking to protect bees and other critical pollinators that are in decline
globally because of the widespread use of pesticides, habitat loss, changing
climate, and disease, via research, public education, grassroots campaigns,
and policy advocacy.
Amicus Center for Environmental Health (CEH) is a tax-exempt
nonprofit corporation with offices in Oakland, California and New York,New York. Founded in 1996, CEH is dedicated to protecting the publicfrom environmental and public health hazards, including harmful
pesticides. CEH achieves its mission by working with communities,
consumers, workers, government, and the private sector to demand andsupport business and agricultural practices that are safe for public health andthe environment. As part of its mission, CEH and its staff have long been

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involved in efforts to combat the negative human health and environmental
effects of pesticides and other harmful contaminants in our food system. For
example, CEH is a member of Californians for Pesticide Reform, anorganization whose mission is to protect public health, improve
environmental quality, and expand a sustainable and just agricultural system
by seeking to change state and local pesticide policies and practices, andCEH’s research director Caroline Cox serves on the California Departmentof Pesticide Regulation’s Pest Management Advisory Committee. Theinterests of CEH and its members in reducing the harmful impacts stemmingfrom pesticide use are being, and will be, adversely affected by EPA’s
proposed registration of sulfoxaflor.
Amicus Conservation Law Foundation (CLF) is a New England-based
environmental advocacy organization. Since 1966, CLF has used the law,science, policymaking, and the business market to find pragmatic,
innovative solutions to New England’s toughest environmental
problems. CLF’s mission is to fight for a healthy, thriving New England forgenerations to come. CLF’s Farm and Food Initiative is tackling some of
New England’s most pressing environmental and health issues by working
to help shape and foster the development of a robust New England regional
food system. Toward this end, CLF works with stakeholders to develop and7

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advance local, state, regional, and national policy that will grow and support
resilient regional food systems. The continued existence of healthy
pollinators is integral to food system resilience in New England.
Amicus Midwest Organic and Sustainable Education Service(MOSES) is a nonprofit organization that provides education, resources, andexpertise to help farmers grow organic. The organization is best known for
the annual MOSES Organic Farming Conference, the country’s largest
conference focused on organic and sustainable agriculture. MOSES alsoorganizes on-farm field days and customized trainings to help farmers learn
more about organic production. MOSES’s Organic Specialists answer
farmers’ specific questions through the Organic Answer Line and the Ask aSpecialist feature on the MOSES website. This website offers information
on nearly every aspect of organic production, as well as access to resources
such as the Upper Midwest Organic Resource Directory, the Guidebook for
Organic Certification, and more than thirty fact sheets. MOSES also
publishes the twenty-four page, bi-monthly Organic Broadcaster newspaperwith practical features that provide insights into organic production.
Amicus Beyond Pesticides is a national nonprofit corporation that
promotes safe air, water, land, and food, and works to protect public healthand the environment by encouraging a transition away from the use of toxic

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pesticides. With the resources of Beyond Pesticides made available to the
public on a national scale, Beyond Pesticides contributes to a significant
reduction in unnecessary pesticide use, thus improving protection of publichealth and the environment. As a part of its mission, Beyond Pesticides
launched a national BEE Protective campaign, a national public education
effort supporting local action aimed at protecting honey bees and otherpollinators from pesticides and contaminated landscapes.
Amicus Pesticide Action Network North America (PANNA) is anational nonprofit organization based in Oakland, California. For over thirty
years, PANNA has worked to replace the use of hazardous pesticides withhealthier, ecologically-sound pest management. PANNA provides scientificexpertise, public education, and access to pesticide data and analysis, policy
development, and coalition support to more than 100 affiliated organizationsin North America. PANNA has more than 100,000 members across theUnited States and is an independent regional center of Pesticide Action
Network International, a coalition of public interest organizations in morethan ninety countries. PANNA members, including farmers and beekeepers,
live, work, and recreate in areas of the country where pesticides are applied,
and in which pesticide drift and transport occurs. PANNA has a strong
interest in ensuring that EPA protects pollinators, public welfare, and the9Case: 13-72346

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environment from pesticide contamination as well as a long history of
advocacy to EPA on this issue.
Amicus The Sierra Club is a national nonprofit organization of
approximately 600,000 members dedicated to exploring, enjoying, andprotecting the wild places of the earth; to practicing and promoting the
responsible use of the earth’s ecosystems and resources; to educating andenlisting humanity to protect and restore the quality of the natural andhuman environment; and to using all lawful means to carry out theseobjectives. The Sierra Club’s concerns encompass the regulation of toxic
pesticides and protection of pollinators. The Sierra Club’s particular interestin this case and the issues which the case concerns stem from the Sierra
Club’s goals to protect the health of the people of the earth and to maintain ahealthy and diverse ecosystem through the use of sustainable methods offood production.
Amicus National Family Farm Coalition (NFFC) is comprised oftwenty-six grassroots member organizations striving to empower family
farmers, ranchers, fishermen, and rural communities by reducing thecorporate control of our food system. NFFC seeks to establish farm andfood policies that are socially, economically, and environmentally just.
Therefore, the long-term sustainability of seeds, pollinators, air, water, and10

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soil is essential to NFFC’s mission.
Amicus American Bird Conservancy (ABC) is a 501(c)(3) not-forprofit membership organization whose mission is to conserve native birds
and their habitats throughout the Americas. ABC acts by safeguarding therarest species, conserving and restoring habitats, and reducing threats, whilebuilding capacity in the bird conservation movement. The ABC Pesticides
Program aims to protect wild birds and other wildlife from hazardous
pesticides. Strategies include working to cancel or restrict the mostdangerous pesticides; developing and supporting cutting-edge science,
including evaluating and monitoring of pesticide impacts; and serving as an
information and advocacy hub in close coordination with the National
Pesticide Reform Coalition. In 2013, ABC produced the state-of-the-art
review on impacts of neonicotinoid insecticides on birds, aquatic
invertebrates, and other wildlife. ABC joined CFS, Beyond Pesticides, andother groups in filing comments on EPA’s proposed registration of
sulfoxaflor.

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SUMMARY OF ARGUMENT
One in every three bites of food we eat depends on a crop pollinatedby honey bees (Apis mellifera).1 Ninety percent of all flowering plants
require pollinators to reproduce.2 Yet, disturbingly, bees and otherpollinators are experiencing alarming population declines, with manycolonies dying and disappearing altogether. One manifestation of thisphenomenon is known as Colony Collapse Disorder (CCD). According to
EPA and the United States Department of Agriculture (USDA), U.S.
beekeepers have lost an estimated ten million hives since 2006, creating an
estimated loss of two billion dollars and putting “great pressure” on sectorsof the agricultural economy.3
The precipitous decline of bees and other pollinator populations is1

Renée Johnson, Cong. Research Serv., RL 33938, Honey Bee Colony
Collapse Disorder 1 (2010), available at
http://www.fas.org/sgp/crs/misc/RL33938.pdf.
2

Janet N. Abramovitz, Putting a Value on Nature’s “Free” Services 11
World Watch Mag. 10, 16 (1998), available atwww.worldwatch.org/system/files/EP111B.pdf.

3

USDA, Report on the National Stakeholders Conference on Honey Bee
Health (USDA Report) 1-2 (Oct. 15–17, 2012); EPA, USDA and EPA
Release New Report on Honey Bee Health, Newsroom (May 2, 2013),
http://yosemite.epa.gov/opa/admpress.nsf/0/E04602A5E7AA060685257B5F
004A12D3.

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alarming, even in isolation. But that ignores, as legendary radio broadcasterPaul Harvey would say, “the rest of the story.”4 Bees and other pollinators
are the sine qua non of agriculture and food production. The United Nations
estimates that of the roughly 100 crops that provide the vast majority of theworld’s food, seventy-one percent are bee-pollinated.5 Bee losses mortally
injure beekeepers and farmers livelihoods and at the same time gravely
threaten the agricultural economy and food supply.
Moreover, many of the same stressors that adversely impact bees also
threaten the existence of numerous other species, including other pollinators
like birds and butterflies, other beneficial insects, and aquatic and terrestrial
invertebrates. Because bees are an indicator species whose well-beingreflects overall environmental health or crisis, their decline portends
irreparable harm to the broader environment.
Scientists have linked the drastic declines in honey bee and otherpollinator populations to systemic pesticides, and more specifically, to a

4

The Associated Press, Paul Harvey, Talk-Radio Pioneer, Is Dead at 90,
N.Y. Times, Feb. 28, 2009, available at
http://www.nytimes.com/2009/03/01/nyregion/01harvey.html.
5

Food & Agric. Org. of the U.N., Protecting the Pollinators, Agric. &Consumer Prot. Dep’t Spotlight (Dec. 2005),
http://www.fao.org/ag/magazine/0512sp1.htm.

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category of systemic pesticides known as neonicotinoids. Sulfoxaflor is asystemic pesticide with the same mode of action as neonicotinoids, and onethat EPA determined is “very highly toxic” to bees. Petitioners’ Excerpts ofRecord (PER) at 195. EPA’s registration of sulfoxaflor will introduce yet
another systemic and highly toxic insecticide into the environment,
intensifying the ecological crises of CCD and other pollinator losses.
Accordingly, Amici respectfully submit this Brief in support ofPetitioners, requesting that this Court vacate EPA’s decision to register
sulfoxaflor. Far from being supported by the required substantial evidence,
EPA’s decision is contrary to the record evidence, and in violation of theFederal Insecticide, Fungicide, and Rodenticide Act (FIFRA). EPA failed torigorously examine the uses and impacts of sulfoxaflor, particularly in lightof the environmental stressors already faced by pollinator populations.
Further, EPA’s decision considers only the alleged benefits of sulfoxaflor,
while wholly ignoring the significant costs that registration will have on the
agricultural economy, food security, and the environment. As such, EPA
failed to show that the registration of sulfoxaflor will not cause any“unreasonable adverse effects on the environment.” 7 U.S.C.
§ 136a(c)(5)(C). For these reasons, Amici respectfully request that thisCourt set the registration aside and remand.

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ARGUMENTI.

SULFOXAFLOR AND OTHER SYSTEMICNEONICOTINOID PESTICIDES
Scientists link many CCD symptoms to indiscriminate use of systemic

pesticides, a type of pesticide that includes neonicotinoids like sulfoxaflor.
When applied, plants absorb systemic pesticides, which then spread throughthe plant’s vascular system and express through the plant’s tissues, including
flowers, pollen, and nectar. Pollinators are thus exposed to systemics
through numerous routes, including pollen and nectar, planting dust, residue
from foliar applications, guttation (expressed fluid) droplets on contaminatedplants, and contaminated soil and water.6 Systemic pesticides can persist in
plant tissues, soil, and the environment for months or even years, and may
build up after repeated applications, extending the time and means of

6See, e.g., Jennifer Hopwood et al., The Xerces Soc’y for Invertebrate
Conservation, Are Neonicotinoids Killing Bees? (2012), available at
http://www.xerces.org/wp-content/uploads/2012/03/Are-NeonicotinoidsKilling-Bees_Xerces-Society1.pdf; Andrea Tapparo et al., Assessment of theEnvironmental Exposure of Honeybees to Particulate Matter Containing
Neonicotinoid Insecticides Coming From Corn Coated Seeds, 46 Envtl. Sci.
& Tech. 2592, 2592-99 (2012); Vincenzo Girolami et al., Translocation of
Neonicotinoid Insecticides From Coated Seeds to Seedling Guttation Drops:
A Novel Way of Intoxication for Bees, 102 J. Econ. Entomology 1808, 180815 (2009).

15

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exposure.7
Neonicotinoids, a category of systemic pesticides, so named because
they act on the nicotinic acetylcholine receptor in insects, have significant
lethal and sub-lethal effects on bees. Dozens of independent, peer-reviewed
scientific studies have documented various negative impacts, including, interalia, damage to foraging behavior and increased worker bee mortality,8homing failure,9 increased susceptibility to pathogens,10 and reduced colony
growth rate and queen production.11 Like the neonicotinoids already in use,
sulfoxaflor acts on the nicotinic acetylcholine receptor in insects. PER 186.
When EPA first approved neonicotinoids, beekeepers began to7

Hopwood et al., supra note 6, at 6.

8

Richard Gill et al., Combined Pesticide Exposure Severely Affects
Individual- and Colony-level Traits in Bees, 491 Nature 105, 105-08 (2012).
9

Dave Goulson, An Overview of the Environmental Risks Posed by
Neonicotinoid Insecticides 50 J. Applied Ecology 977, 977-87 (2013);
Takashi Matsumoto, Reduction in Homing Flights in the Honey Bee Apis
mellifera After a Sublethal Dose of Neonicotinoid Insecticides, 66 Bull.
Insectology 1, 1-9 (2013).
10

Jeffery S. Pettis et al., Pesticide Exposure in Honey Bees Results inIncreased Levels of the Gut Pathogen Nosema, 99 Naturwissenschaften 153,
153-58 (2012).
11

Penelope R. Whitehorn et al., Neonicotinoid Pesticide Reduces Bumble
Bee Colony Growth and Queen Production, 336 Sci. 351, 351-52 (2012).

16

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document various disturbing bee behaviors—“bees not returning to the hive,
disoriented bees, bees gathered close together in small groups on the ground,abnormal foraging behavior, the occurrence of massive bee loses in spring,queen losses, increased sensitivity to diseases and colony disappearance”—
now known to be symptomatic of CCD.12 More recently, governments andexperts are placing neonicotinoids under increasing scrutiny because
scientists have now specifically identified systemic neonicotinoids as a
primary contributing factor to this ecological crisis. Multiple studies now
link the symptoms identified by beekeepers nearly a decade ago with
exposure to neonicotinoids. These studies demonstrate the adverse effects ofneonicotinoids on bees, including “disorientation, reduced communication,
impaired learning and memory, reduced longevity, and reduced feeding,which strongly support that [neonicotinoids] may be one of the major factors
involved with the onset of CCD.”13 Based on such risks, European Union
member states approved a two-year moratorium on the use of certain

12

Jeroen P. van der Sluijs et al., Neonicotinoids, Bee Disorders and theSustainability of Pollinator Services, 5 Current Op. Envtl. Sustainability
293, 294-95 (2013).
13

Tahira Farooqui, A Potential Link Among Biogenic Amines-based
Pesticides, Learning and Memory, and Colony Collapse Disorder: A UniqueHypothesis, 62 Neurochemistry Int’l 122, 132 (2012) (emphases added).

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neonicotinoids in 2013.14 Alarmingly, EPA still has not addressed theserisks. A 2012 study found that EPA consistently approved neonicotinoid
pesticide registrations despite its own scientists’ repeated concerns, andconcluded that EPA “has not been heeding the warnings of its own
toxicologists.”15
Registration of sulfoxaflor represents a continuation of this disturbing
practice.16 Introducing yet another systemic and highly toxic insecticide into
the environment will exacerbate the problems faced by bees and otherpollinators, and create new synergistic effects.

14

Eur. Comm’n, Bees & Pesticides: Commission Goes Ahead with Plan to
Better Protect Bees (May 30, 2013),
http://ec.europa.eu/food/animal/liveanimals/bees/neonicotinoids_en.htm.
This decision came after the European Food Safety Authority released areport identifying “high acute risk” to honey bees from neonicotinoids. Eur.
Food Safety Auth., EFSA Identifies Risks to Bees from Neonicotinoids (Jan.
16, 2013), http://www.efsa.europa.eu/en/press/news/130116.htm.
15

Pierre Mineau & Cynthia Palmer, Am. Bird Conservancy, The Impact of
the Nation’s Most Widely Used Insecticides on Birds 65 (2013), available at
http://www.abcbirds.org/abcprograms/policy/toxins/Neonic_FINAL.pdf.
16

See also Brief for Petitioner at 8-17 (discussing EPA’s decision to register
sulfoxaflor, five months after recommending conditional registration andfurther studies).

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EPA HAS NOT SHOWN BY SUBSTANTIAL EVIDENCE
THAT SULFOXAFLOR’S REGISTRATION WILL NOT
CAUSE UNREASONABLE ADVERSE EFFECTS ON THE
ENVIRONMENT
Registration of sulfoxaflor creates significant costs and risks of harmto the bees and pollinators that are essential to natural ecosystems and theagricultural economy. None of the benefits that EPA alleges sulfoxaflor willbring outweigh these costs. PER 198-99.
Before granting a pesticide registration, EPA must determine that thepesticide will not cause any “unreasonable adverse effects on theenvironment.” 7 U.S.C. § 136a(c)(5)(C). FIFRA requires EPA to determine
whether a pesticide will cause such effects by weighing the economic,
social, and environmental costs, along with the benefits, of any pesticide. Id.
§ 136(bb). EPA’s conclusion must be supported by substantial evidence. Id.
§ 136n; see, e.g., Nw. Food Processors Ass’n v. Reilly, 886 F.2d 1075, 1079
(9th Cir. 1989).
EPA’s own studies show that sulfoxaflor is highly acutely toxic toindividual bees. PER 195. Further, EPA could not “preclude risks todeveloping brood or long-term colony health.” PER 37. Moreover, there isincreasing evidence that other neonicotinoid pesticides are contributing to19

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the honey bee CCD crisis and alarming declines in native pollinators.17
Beyond these pollinators, studies show that neonicotinoids can cause direct
and indirect mortality risks to birds, aquatic invertebrates, and ecosystems
more generally.18 EPA failed to show how sulfoxaflor’s purported benefits
would outweigh these significant and potentially irreparable risks.
A. EPA ignores the threats that systemic pesticides pose to foodproduction and security, and the costs they impose on the
agricultural economy.
FIFRA’s statutory command to balance the benefits and costs of theuse of any pesticide requires EPA to examine the impacts that sulfoxaflor’s
toxicity to bees will have on the production of crops that require bee
pollination, not merely the purported benefits that sulfoxaflor will allegedly
provide to growers. PER 199.
EPA completely failed to do this critical analysis. See, e.g., Universal
Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 487-88 (1951)
17

See e.g., Whitehorn et al., supra note 11, at 351-52; Siyuan Lu et al.,Design, Synthesis, and Particular Biological Behaviors of Chain-opening
Nitromethylene Neonicotinoids with Cis Configuration, 60 J. Agric. & Food
Chemistry 322, 322-30 (2012); Mickaël Henry et al., A Common Pesticide
Decreases Foraging Success and Survival in Honey Bees 336 Sci. 348,
348-50 (2012); Cédric Alaux et al., Interactions Between Nosema
Microspores and a Neonicotinoid Weaken Honeybees (Apis mellifera), 12
Evntl. Microbiology 774, 774-782 (2010).
18

Mineau & Palmer, supra note 15, at 5.

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Page: 29 of 42(holding that “the substantiality of evidence must take into account whateverin the record fairly detracts from its weight”). Instead, EPA offers only that
sulfoxaflor will bring “some benefits . . . when compared to thealternatives,” and ignores the significant costs that its registration of
sulfoxaflor will impose. PER 199. While EPA’s “Risk Benefit
Determination” focuses on sulfoxaflor’s purported ability to help foodproduction by eliminating target species, PER 199, it disregards evidence
that sulfoxaflor will pose grave dangers to the very bees that facilitate thatfood production, Port of Seattle v. Fed. Energy Regulatory Comm’n, 499
F.3d 1016, 1035 (9th Cir. 2007) (holding that under substantial evidence
review “an agency must account for evidence in the record that may disputethe agency’s findings”). EPA also claims that sulfoxaflor “will beincorporated into Integrated Pest Management programs,” PER 199, but
ignores that systemic pesticides are contrary to the principles of Integrated
Pest Management, which aim to lessen effects on non-target insects.19
The role that honey bees fill in agricultural production cannot be

19

Systemic pesticides are routinely used preemptively, before a need isdemonstrated, and by their nature persist in the plant’s vascular system,
which exposes non-target species. Integrated Pest Management uses various
preventive means only once a need is demonstrated. Hopwood et al., supranote 6, at 4.

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overstated. Increasingly, industrialized agriculture has come to rely
extensively on this single species to provide crop pollination.20 Indeed,certain fruit, seed, and nut crops can see their yields decrease by more thanninety percent in the absence of honey bees.21 According to EPA,
pollination contributes twenty to thirty billion dollars in crop production
annually to the U.S. agricultural economy.22
Contrary to FIFRA, EPA ignores this important factor and fails toanalyze the substantial costs of adversely affecting these invaluable
pollinators. See 7 U.S.C. § 136(bb) (defining “unreasonable adverse effects
on the environment” to include “any unreasonable risk to man or theenvironment, taking into account the economic, social, and environmental
costs and benefits of the use of any pesticide”) (emphasis added). Thisoverarching failure skews the agency’s review. For example, EPA cites two
20

See Rebecca Chaplin-Kramer et al., Value of Wildland Habitat for
Supplying Pollination Services to Californian Agriculture, 33 Rangelands
33, 33 (June 2011).
21

Alexandra-Maria Klein et al., Importance of Pollinators in Changing
Landscapes for World Crops, 274 Proc. Royal Soc’y B: Biological Sci. 303,
303–313 (2007).
22

EPA, USDA and EPA Release New Report on Honey Bee Health,Newsroom (May 2, 2013),
http://yosemite.epa.gov/opa/admpress.nsf/0/E04602A5E7AA060685257B5F
004A12D3.

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grower groups (citrus and apple) in its final registration decision that will
purportedly benefit from the use of sulfoxaflor, but does no analysis andmakes no mention in the decision that both citrus and apple crops benefit
directly from bee pollination. PER 199. Though EPA’s Biological andEconomic Analysis Division (BEAD) assessed sulfoxaflor’s potential
benefits to several crops and determined “that honey bees are important in
the pollination of citrus,” its analysis inappropriately ends there.23 PER 24.
EPA acknowledged this in its response to comments, stating that BEAD’s
analysis only assessed the benefits, and not the costs of registration of
sulfoxaflor. PER 233. Other crops that require or benefit directly from bee
pollination include almonds, blueberries, melons, cherries, and squash.24
EPA similarly ignored the costs that more honey bee losses would incur onthese crops.
To further illustrate the value of pollinating honey bees, consider

23

BEAD also assessed fruiting vegetables, cucurbits, and cotton. PER
21-24.

24

Nicholas W. Calderone, Insect Pollinated Crops, Insect Pollinators and
US Agriculture: Trend Analysis of Aggregate Data for the Period 1992–
2009, 7 PLoS One 2 (2012), available at PER 337; see also Chaplin-Kramer
et al., supra note 20, at 33.

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almonds grown in California, which are entirely dependent on honey bees.25
Utilizing nearly sixty percent of all U.S. pollinating bee colonies, 26
California almond growers produced nearly four billion dollars in value in2012 because of bees.27 If bees disappear, so too would California’s
largest-value agricultural export and eighty percent of the world’s almondsupply.28 EPA failed to adequately analyze or account for these adverse
effects.
Additionally, the economic costs of sulfoxaflor’s registration go
beyond lost crop production. Pollinator shortages can cause yield andquality reductions and increase production costs, and thus threaten food25

USDA, Agric. Research Serv., Honey Bees and Colony Collapse
Disorder, http://www.ars.usda.gov/News/docs.htm?docid=15572 (lastmodified Dec. 02, 2013).
26

Hoy Carman, The Estimated Impact of Bee Colony Collapse Disorder on
Almond Pollination Fees, 14 Agric. & Res. Econ. Update 9, 9 (2011),
available at
http://giannini.ucop.edu/media/are-update/files/articles/V14N5_4.pdf.
27

USDA, Nat’l Agric. Stat. Serv., 2013 California Almond Forecast (May 2,2013), available at
http://www.nass.usda.gov/Statistics_by_State/California/Publications/Fruits_and_Nuts/201305almpd.pdf.

28

Carman, supra note 26, at 9.

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security.29 Since 2006, beekeepers have lost an estimated ten million bee
hives, with a total replacement cost of over two billion dollars borne entirely
by beekeepers.30 Over the winter of 2012 and 2013, U.S. commercial
beekeepers reported average annual hive losses of approximately forty-five
percent of the colonies in their operation, a seventy-eight percent increase in
the average loss compared to the previous winter.31 As bee losses mount,beekeepers must replace lost bees to fulfill pollination contracts and mustraise prices, the costs of which are which in turn passed on to producers, andare then passed on to the consumer.32 EPA did not account for these losses
and their effects, in violation of its statutory duty to take into account all“costs and benefits” before registering a pesticide. 7 U.S.C. § 136(bb).
EPA similarly ignores the costs associated with harm to native bees
and other wild pollinator species. Many of these species—including many
29Peter G. Kevan & Randolf Menzel, The Plight of Pollination and theInterface of Neurobiology, Ecology and Food Security, 32 Environmentalist
300, 302 (2012).

30

USDA Report, supra note 3, at 1-2. No insurance or government
indemnity programs cover these losses.
31

Bee Informed P’ship, Winter Loss Survey 2012 – 2013: Preliminary
Results, (May 2, 2013), http://beeinformed.org/2013/05/winter-loss-survey2012-2013/ (survey in part sponsored by USDA).
32

Carman, supra note 26, at 9.

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bumble bee species, and other insects such as butterflies, ladybugs andlacewings, dragonflies, and hoverflies—are facing declines comparable tothose faced by honey bees.33 At least four species of North American wildbees have experienced catastrophic declines over the past decade, and two ofthem may be on the brink of extinction.34 EPA notes that sulfoxaflor
exhibits similar toxicity to adult bumble bees (Bombus terrestris) as it does
to honey bees, but does nothing to weigh this risk in its risk-benefit
determination or final registration decision. PER 195. Further, EPA’s risk
assessment and final registration decision contain significant data gaps
regarding other native bee and non-bee insects, which EPA wholly
overlooks. (It should be noted that EPA did not consult with the U.S. Fish
and Wildlife Service or the National Oceanic and Atmospheric
Administration’s National Marine Fisheries Service before approving
sulfoxaflor, with respect to its potential effects on threatened and endangered33

See e.g., Chaplin-Kramer et al., supra note 20, at 33; Elaine Evans et al.,
The Xerces Soc’y for Invertebrate Conservation, Status Review of Three
Formerly Common Species of Bumble Bee in the Subgenus Bombus (2009)
available at
http://www.xerces.org/wp-content/uploads/2009/03/xerces_2008_bombus_status_review.pdf.
34

Evans, supra note 33.

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species under Section 7 of the Endangered Species Act. 16 U.S.C. §1536(a)(2)).35
Like their dying cousins, these wild pollinators are critical to U.S.
agriculture and food production, a factor that EPA neglects. See 7 U.S.C.
§ 136(bb); see also S. Rep. 970, 92d Cong. 2d Sess., reprinted in 1972
U.S.C.C.A.N. 4092, 4095 (EPA must “make a full weighing of competinginterests in making its determinations”). For example, in California, thenation’s biggest agriculture-producing state,36 wild pollinators produce anestimated $937 million to $2.4 billion per year in economic value.37 Yet,
California’s wild pollinators are now least abundant in the areas most likely
to be treated with systemic pesticides: “intensive monoculture areas where
demand for pollination services is largest.”38 Unsurprisingly, native bee and35

Comments from Ctr. for Food Safety, to EPA Office of Pesticide
Programs, Re: Proposed Conditional Registration of Sulfoxaflor 7 (Feb. 12,2013), Docket No. EPA-HQ-OPP-2010-0889-0363, available at
http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPP-20100889-0363.
36

Cal. Dep’t Food & Agric., California Agricultural Production Statistics,
http://www.cdfa.ca.gov/statistics/ (last visited Dec. 13, 2013).
37

Chaplin-Kramer et al., supra note 20, at 37.

38

Ann Brody Guy, Univ. Cal. Berkeley, Wild Pollinators Worth up to $2.4
Billion to Farmers, Study Finds, Univ. Cal. Berkeley News Center (June 20,27

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pollinator species suffer the same sub-lethal and chronic effects fromsystemic pesticide use as managed honey bees.39 Introducing anothersystemic pesticide to the environment threatens to harm these essential
pollinators and decrease overall crop production capabilities.
Accordingly, EPA has violated FIFRA by entirely overlooking thesesignificant costs of its registration decision. EPA has not adequately
analyzed the unreasonable risks sulfoxaflor poses in the form of bee andother pollinator population losses, and the concomitant costs to theagricultural economy and food system. In so doing, EPA has failed to meetits substantial evidence burden. 7 U.S.C. § 136n(b).
B.

EPA failed to consider the impacts of systemic pesticides on
the environment and its ecosystems.

Bees are an indicator species, meaning that their well-being is a
microcosm of broader ecosystem health. Moreover, bees and otherpollinators provide essential ecological services that “are often taken for2011), http://newscenter.berkeley.edu/2011/06/20/wild-pollinators-worthbillions-to-farmers/.
39

Whitehorn et al., supra note 11, at 351-52 (finding that bumble beecolonies exposed to field-realistic levels of a neonicotinoid experienced asignificantly reduced growth rate and an eighty-five percent reduction in
new queens).

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granted, regarded as free, generally stable, ubiquitous, and perpetual.”40
EPA made this critical mistake by failing to consider pollinators’ crucial
service to the environment in its risk-benefit determination.
Bees and other pollinators do much more than just feed the planet;they help maintain biodiversity, food production, and human welfare.41
Pollination is an essential ecosystem service—one of the integrated“interactions between life and its physical environment that allows life . . . toexist.”42 Through pollination, bees provide a host of services, such as “seeddispersal, successional changes in plant communities, soil evolution, andnutrient cycling.”43 As such, major losses in bee populations portend andevince major losses in biological diversity and ecosystem health.
Unsurprisingly, systemic pesticides have direct and indirect effects onother non-target species and animals. Systemic neonicotinoid pesticides
cause direct and indirect mortality to a wide range of birds and aquatic
invertebrates, and have likely contributed to significant declines of grassland

40

Kevan & Menzel, supra note 29, at 300.

41

van der Sluijs et al., supra note 12, at 294.

42

Kevan & Menzel, supra note 29, at 300.

43

Id. at 305.

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birds in North America.44 For instance, pesticide use that reduces farmlandbirds’ invertebrate food supply can negatively affect those birds’
reproductive success and lead to population declines.45 In addition toindirect effects of bee losses, systemic pesticides can directly harm
ecosystems and their non-bee inhabitants as well.46
Amicus CFS submitted comments opposing EPA’s proposed
conditional registration of sulfoxaflor, noting its high acute toxicity tosaltwater invertebrates and EPA’s lack of mitigation measures for potential
coastal usages, through labeling or otherwise.47 EPA dismissed this hightoxicity in its registration decision, characterizing it as only “marginally”
exceeding acute risk and makes no mention of these direct adverse effects onaquatic ecosystems in its risk benefit determination. PER 194. Moreover,
EPA acknowledges that sulfoxaflor will result in surface and groundwatercontamination, but similarly makes no determination how this will effect44

Mineau & Palmer, supra note 15, at 6-9, 67.

45

Id. at 37-38.

46

Id. at 15 (noting that as early as 2008, EPA had stated that certain
neonicotinoids posed a potential “for direct adverse effects on freshwater
invertebrates, birds and mammals”) (internal quotation omitted).

47

Ctr. for Food Safety, supra note 35, at 7-8.

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aquatic environments. PER 30. That precursor neonicotinoids havecontaminated groundwater in levels that “may be totally unprecedented in
the history of pesticide registration” makes EPA’s registration of sulfoxaflor
all the more troubling.48
Continued pollinator losses caused by exposure to sulfoxaflor will
harm natural ecosystems and the organisms that rely on them. EPA
considered and improperly dismissed direct risks to non-pollinator aquaticand terrestrial organisms, and also ignored the indirect and cumulative risks
these organisms will confront in the face of further bee losses. Such risks
fall within those that EPA must consider when determining whether
registering a pesticide will create “any unreasonable risk to . . . theenvironment.” 7 U.S.C. § 136(bb) (emphasis added). As such, EPA did not
fulfill its statutory mandate to show by substantial evidence that registrationof sulfoxaflor will not cause unreasonable adverse effects on theenvironment.
CONCLUSION
A pollinator crisis is occurring. This reality requires the utmost
protection of our valuable pollinators, and the economies and ecosystems

48

Mineau & Palmer, supra note 15, at 57.

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that they sustain. EPA’s approval of sulfoxaflor dangerously ignores theongoing global ecological crisis occurring to these indispensable organisms
and threatens the existence of life on this planet. In making its
determination to register sulfoxaflor, EPA inadequately considered, or
ignored entirely, sulfoxaflor’s harm to pollinators and the significant costs
that harm will impose on the agricultural economy, food security, andnatural ecosystems. EPA has not shown by substantial evidence that theregistration of sulfoxaflor will not cause any unreasonable adverse effects on
the environment, as required by FIFRA. Accordingly, this Court should set
the registration aside and remand.
Respectfully Submitted,
Dated: December 13, 2013s/ George A. Kimbrell
George A. Kimbrell
Sylvia Shih-Yau Wu
CENTER FOR FOOD SAFETY
303 Sacramento St., 2nd Floor
San Francisco, CA 94111
Telephone: (415) 826-2770
Facsimile: (415) 826-0507
Counsel for Amici Curiae

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CERTIFICATE OF COMPLIANCE WITH
RULES 29(C)(5), 29(D), 32(A)1.

Pursuant to Rule 29(c)(5) of the Federal Rules of Appellate

Procedure, Amici state that (a) no party’s counsel authored the brief in whole
or in part; (b) no party or party’s counsel contributed money that was
intended to fund preparing or submitting the brief; and (c) no person—otherthan Amici, their members, or their counsel—contributed money that was
intended to fund preparing or submitting the brief.
2.

With respect to the type-volume limitations of Fed. R. App. P.

29(d) and 32(a)(7)(B), this brief contains 6111 words, excluding the parts ofthe brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
3.

This brief complies with the typeface requirements of Fed. R.

App. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)
because this brief has been prepared in a proportionately spaced typeface
using Microsoft Word 2010 in 14-point Times New Roman.
Respectfully submitted,
Dated: December 13, 2013s/ George A. Kimbrell
George A. Kimbrell
Sylvia Shih-Yau Wu
CENTER FOR FOOD SAFETY
303 Sacramento St., 2nd Floor
San Francisco, CA 94111
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Case: 13-72346

12/13/2013

ID: 8901743

DktEntry: 25-2

Page: 42 of 42

Telephone: (415) 826-2770
Facsimile: (415) 826-0507
Counsel for Amici Curiae

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