Paul Weiland Quoted In Law360 On Ninth Circuit's Ruling In Pollinator Stewardship Council et al. v. U.S. Environmental Protection Agency

Law 360

Nossaman partner Paul Weiland was quoted in Law360 regarding the Ninth Circuit’s recent ruling in the Pollinator Stewardship Council et al. v. U.S. Environmental Protection Agency matter. In the ruling, the Ninth Circuit reversed the Environmental Protection Agency’s  approval of a pesticide with the active ingredient sulfoxaflor—one of the first of a newly assigned subclass of neonicotinoid pesticides. National beekeeping and environmental organizations had sued the agency claiming that sulfoxaflor could contribute to bee colony collapses.

The article speculates that the Ninth Circuit’s ruling is an indicator that there will be greater scrutiny by different organizations that are now following this class of pesticides.  Commenting on the decision, Weiland noted that it does have the potential, to the extent that [it] stays in place, to have impacts in terms of other pesticides because where insufficient analyses have been done to…fill out the risk assessment picture for a pesticide…clearly the Ninth Circuit is saying that you have to err on the side of not allowing that pesticide to be used. 

In many cases, courts will defer to the EPA’s technical judgment — or any federal agency’s — since it is seen as the expert in the matter. But in its ruling, the Ninth Circuit said that the EPA’s basis for unconditionally registering sulfoxaflor in the absence of sufficient data documenting the risk to bees does not hold up under its own rationale.

Given this development, Weiland commented on the difficulties parties can face regarding the level of review a matter can receive before the Ninth Circuit. I  think [in this matter], the level of review that was provided by the court and their willingness to delve into technical issues is certainly greater than in some cases… and that can make all the difference. However, the Ninth Circuit has not always been consistent on these issues, Weiland continued.  In other  cases, the Ninth Circuit took a very different approach and, where there was any uncertainty, allowed federal agencies to make decisions based on its professional opinion, instead of saying that it had to stick with the data. I feel bad for [businesses in industries regulated by the EPA]  because they read cases where it looks like the agency is going to get a free pass, and then there are some where the agencies are getting  [a] really rigorous review. What are they to make of all of this? Weiland said.

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