By Robert L. Graham, Partner, Jenner & Block LLP
Bob Graham co-authored a leading environmental law textbook in use at many U.S. law schools titled Environmental Law and Policy: Nature, Law and Society. The Fourth Edition of this textbook was launched in 2010 and includes two Teacher's Manuals as well as annual professors' updates. More information about the textbook and supplementary materials are available at Environmental Law and Policy: Nature, Law, and Society.
The 2012-2013 updates will soon be published and include new insights, case law summaries and guidance on key developing areas. One topic addressed is bee colony collapse disorder (CCD) and EPA's management of this concern under FIFRA.
Below is a summary of CCD as updated in the textbook:
Colony Collapse Disorder and FIFRA. During the winter of 2006-2007, a number of beekeepers throughout the United States, and elsewhere, began to report unusually high losses of 30-90 percent of their hives. As many as 50 percent of all affected colonies demonstrated symptoms inconsistent with known causes of honeybee death. These symptoms involved the sudden loss of a colony's worker bee population, with very few dead bees found near the colony. The queen and the brood (young) often remained, and the colonies had relatively abundant honey and pollen reserves. But the hives could not sustain themselves without worker bees and would eventually die. This combination of events, resulting in the loss of a bee colony, has been labeled Colony Collapse Disorder (CCD).
CCD in honeybees, and pollinator declines in general, have become serious environmental concerns. Because of the importance of bees in the pollination process, CCD could ultimately threaten the functioning of our natural ecosystems and affect the production of many important crops in the United States. Pesticide use has been identified as a potential contributing factor to these declines, along with other potential factors such as new and reemerging pathogens, habitat loss, pests, bee management practices, and nutritional stress.
Researchers leading the effort to determine the cause of CCD are now focused on the following factors:
• Increased losses due to the invasive varroa mite (a pest of honeybees);
• New or emerging diseases such as Israeli Acute Paralysis virus and the gut parasite Nosema;
• Pesticide poisoning through exposure to pesticides applied to crops or for in-hive insect or mite control;
• Bee management stress;
• Foraging habitat modification;
• Inadequate forage/poor nutrition; and
• Potential immune-suppressing stress on bees, caused by one or a combination of factors identified above.
The U.S. Department of Agriculture (USDA) is leading the federal government response to CCD. In 2007, USDA established a CCD Steering Committee with representatives from other government agencies and academia. EPA is an active participant in the CCD Steering Committee. The Steering Committee has now developed a Colony Collapse Disorder Action Plan. The plan has four main components:
1. Survey/data collection to determine the extent of CCD and the current status of honeybee colony production and health;
2...Analysis of bee samples to determine the prevalence of various pests and pathogens, bee immunity and stress, and exposure to pesticides
3...Hypothesis-driven research on four candidate factors including (i) new and reemerging pathogens, (ii) bee pests, (iii) environmental and nutritional stresses, and (iv) pesticides; and
4...Mitigative/preventive measures to improve bee health and habitat and to counter mortality factors.
EPA views its role in the federal response to CCD as keeping abreast of and helping to advance research investigating pesticide effects on pollinators. To date, EPA's claims that it is aware of no data demonstrating that an EPA-registered pesticide used according to the label instructions has caused CCD.
However, a number of commercial beekeepers and honey producers, as well as certain environmental and consumer organizations, strongly disagree with the contention that EPA is doing enough. Specifically, many have charged that EPA has abandoned its obligations under FIFRA to address CCD. Consequently, in March 2012, a petition was filed with the EPA by a group of beekeepers, honey producers, and citizen groups, contending that EPA continues to permit the sale and use of certain pesticides (in particular, clothianidin, which is a neonicotinoid pesticide), while lacking the scientific studies EPA needs to ensure that these pesticides do not pose an unreasonable hazard to bees and other beneficial insects under FIFRA. The petition (Anderson, et al. v. Jackson, EPA Docket No. EPA-HQ-OPP-2012-0334) specifically claims in pertinent part that, under FIFRA, EPA is required, but has failed, to:
1) Cure clothianidin's unlawful conditional registration. Petitioners claim that EPA should promptly suspend the registration of clothianidin and issue a stop sale, use or removal order, pending compliance with EPA's own procedural requirement to provide outstanding data, including but not limited to, the preparation, publication and agency review of a field study sufficient to support a finding that clothianidin does not pose any unreasonable adverse effects to honey bees and other insect pollinators (citing 7 U.S.C. § 136k(a));
2) Prevent imminent harm. Should EPA refuse to initially suspend clothianidin's conditional registration, Petitioners demand that EPA promptly initiate special review and cancellation procedures for clothianidin, pursuant to 7 U.S.C. § 136d; and that EPA suspend the registration for clothianidin, pending completion of the cancellation proceedings based on the ongoing and imminent harm posed; and
3) Recognize clothianidin's inadequate labels. Petitioners further claim that prompt suspension and a stop sale, use or removal order are also necessary, because clothianidin is misbranded. Petitioners contend that FIFRA authorizes EPA to take such action when there is reason to believe a pesticide is being distributed or sold with inadequate labeling (citing 7 U.S.C. § 136k(a)). Petitioners claim that the labels for clothianidin products do not contain directions adequate to protect health and the environment (citing 7 U.S.C. § 136(q)(1)(F)).
Although the petition has only recently been filed, there is no doubt that the inability to date to identify with certainty the specific cause or causes of CCD, coupled with the serious environmental concerns provoked by CCD, triggered the petition. It is also the case that the EPA to date prefers to wait for more definitive data before committing to a particular course of action under FIFRA. However reasonable EPA's position may be, EPA's perceived inaction has nonetheless frustrated numerous commercial beekeepers and honey producers, who fear the consequences of further delay and the impact of various pesticides upon beehives and the bee population. That fear will likely continue to grow until and unless the causes of CCD are determined with more certainty, and EPA takes the initiative to address them.
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