A number of common seed treatments might become relics of the past. Or at least that’s the goal of a lawsuit filed in January by several environmental activist groups seeking to eliminate the use of neonicotinoids.
Led by the Center for Food Safety, the environmental groups seek to force the Environmental Protection Agency (EPA) to require most seeds coated with seed treatments to be registered as pesticides under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Registration under FIFRA would be expensive, time-consuming and a logistical nightmare. Each seed variety that received a seed treatment would have to be registered and approved by EPA. Furthermore, each facility that applied seed treatments would have to be registered as a pesticide manufacturer. All of this would result in a dramatic reduction in the use of seed treatments, which would make crops more susceptible to pests when they are at their most vulnerable stage—germination and early development.
FIFRA is the federal law that governs the approval, labeling and usage of pesticides. Under FIFRA, EPA is charged with establishing the terms and conditions under which a pesticide can be lawfully sold, distributed and used. As a general rule, new pesticides must be registered with EPA, but FIFRA provides exceptions in circumstances where exempting registration would not have “unreasonable adverse effects on the environment.”
EPA employs this exemption authority for many treated seeds. Since 1988, the agency’s policy has exempted “treated articles” from FIFRA registration so long as (1) the articles are treated with a previously registered and approved pesticide; and (2) the effects of the treatment do not extend beyond the article itself. EPA deems treated seeds to be “treated articles” under FIFRA.
Moreover, in 2013, EPA clarified its seed treatment policy and decided seed treatments are exempt from FIFRA and, thus, their planting is not considered “pesticide use.” This means EPA will not investigate bee kills allegedly attributed to neonicotinoids or enforce against seed-treatment manufacturers on the basis of alleged ties between neonicotinoids and decreases in insect populations.
Several environmental activist groups disagree with EPA’s policy stance and believe the agency should be investigating whether neonicotinoids are responsible for bee kills, thus, there is a lawsuit. The suit challenges EPA’s policy on seed treatments by asserting many seed treatments, including neonicotinoids, are systematic pesticides that are not used to protect seeds, but instead are intended to be absorbed into a crop’s plant tissue to serve as a built-in insecticide. In other words, the groups allege most seed treatments violate EPA’s “treated articles” policy because the protection provided by the pesticides extended beyond protecting the article itself.
Environmentalists file a lot of cockamamie lawsuits. This is not one of them. Although there’s room for reasonable disagreement on the linkage between neonicotinoid usage and bee populations, there’s not much disagreement that at least a small portion of neonicotinoid seed coatings ends up being taken into plant systems. Whether this uptake is sufficient to disqualify seed treatments from being exempt from FIFRA registration remains to be seen. As of press time, the federal court hearing the case
denied EPA’s motion to dismiss. Many ag groups are supporting the continued use of seed treatments.
Seed treatments are a valuable tool to protect crops at their most vulnerable stage. They also substantially reduce the amount of pesticides that need to be broadcast on fields. However, if this lawsuit is successful, farmers might have fewer options and more headaches.
This column is not a substitute for legal advice.