Environmentalists ask Ninth Circuit to revive lawsuit over pesticide-coated seeds

A judge previously ruled the EPA reasonably interpreted its regulations when it denied a petition from advocacy groups asking that treated seeds be registered under federal law.PORTLAND, Ore. (CN) — Environmentalists asked a Ninth Circuit panel Thursday to reverse a lower court’s ruling finding that it did not have jurisdiction over a lawsuit challenging an exemption allowing pesticide-treated seeds to skirt registration under federal law.“This case is about pesticidal seeds that are not registered as pesticides and therefore do not have the detailed labeling nor the enforceable labeling that pesticides have,” Amy van Saun, a senior attorney with the Center for Food Safety, told the panel.While pesticide sprays are regulated by the Environmental Protection Agency, pesticide-treated seeds are not, since they fall under the agency’s “treated article exemption.” The treated article exemption means that, unlike pesticide sprays, coated seeds do not have to be registered with the EPA and have no label.The seeds are typically coated with a class of insecticides called neonicotinoids, which target the central nervous system of insects. They are believed to be harmful to pollinators and contaminate water.The Center for Food Safety and Pesticide Action Network sued the EPA in 2023 over the agency’s failure to regulate pesticide-coated seeds. That came after the agency in 2022 denied a petition seeking to require that treated seeds be registered under the Federal Insecticide, Fungicide, and Rodenticide Act.In November 2024, Senior U.S. District Judge Susan Illston sided with the EPA, ruling the agency was acting with the best information it had available when it denied the petition in 2022.On Thursday, U.S. Circuit Judge Michelle T. Friedland, a Barack Obama appointee, peppered van Saun with questions about what relief the plaintiffs are seeking.“Hasn’t the [EPA] made it very clear that it thinks these seeds are safe, and it’s going to say that whichever path it goes down?” the judge asked. “You may be right that the agency is wrong about that, but I’m really struggling to understand how it’s going to help you if the review is done sort of twice instead of once.”Van Saun explained that when pesticides are registered, the EPA has to show the pesticide meets federal safety standards, producing a detailed and enforceable product label. The label may contain information including mitigation measures, personal protective equipment requirements and disposal.“Right now, if somebody is not using these seeds according to even their minimal labels, there is no way to enforce that to stop that use. So that’s going to be the big difference here,” she said.Van Saun pushed back on the EPA’s position that there is no evidence the pesticides are being misused, arguing the current exemption does allow for enough data to be collected to know how the pesticide is being used.However, Friedland seemed unconvinced.“I just don’t really understand, given everything the agency has said here, how the procedures you hope will happen will lead to a different result,” she said.Christopher Anderson, representing the Department of Justice, argued the plaintiffs should have filed their challenge directly with the appeals court within the required time window.“We still think that they can’t make the specific arguments they’re making in this case because those arguments all challenge EPA’s determination made when it registered the treated pesticides: that the use of these pesticides on seeds, and the use of the treated seeds, is consistent with FIFRA’s registration standard,” he said.“Those decisions were all made decades ago. No one disputes that those would have had to be challenged in a court of appeals within 60 days. That statute proposed has long since passed.”Anderson insisted the EPA considers the effects of the pesticides when it registers the products for use on seeds, painting the majority of the plaintiffs’ arguments as just criticisms of EPA’s risk assessments.Karen Carr, an attorney for trade associations that represent farmers, seed companies and crop protection companies, told the panel that the pesticide-treated seeds are some of the “most environmentally targeted forms of pesticide application,” and called them an “essential component of the American farmer’s toolbox.”“The exemption is not a loophole; it is FIFRA being carried out the way that Congress intended. At bottom, appellants are opposed to neonic pesticides in all forms, including their use as seed treatments,” she said.The panel took the case under submission and did not indicate when it would release a ruling.The panel was rounded out by U.S. Circuit Judge Ana de Alba, a Joe Biden appointee, and U.S. District Judge Robert S. Lasnik, a Bill Clinton appointee sitting by designation from the Western District of Washington.Representatives for the parties did not immediately respond to a request for comment.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads