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Anderson v. McCarthy

ELR Citation: 46 ELR 20180
Nos. 16-00068, (N.D. Cal., 11/21/2016) (Alsup, J.)

A district court, on motions for summary judgment, dismissed a lawsuit against EPA filed by a group of beekeepers, farmers, and organizations concerned about the effect of pesticide-treated seeds on bees and other pollinators. The plaintiffs argued that the practice of coating seeds with neonicotinoids has had a systematic and catastrophic impact on bees and the beekeeping industry throughout the United States, and they challenged EPA's alleged failure to enforce FIFRA with respect to such seeds. At issue was a 2013 guidance document document that set forth EPA's recommended procedures for FIFRA inspectors when they are investigating an incident involving bee deaths. Among other things, the guidance states that treated seed may be exempted from registration under FIFRA as a treated article, and as such its planting is not considered a "pesticide use." The plaintiffs claimed that the guidance exceeds EPA's statutory authority, failed to comply with the APA’s rulemaking requirements, and was arbitrary and capricious. They also alleged that EPA’s “non-enforcement policy” regarding neonicotinoid-coated seeds, as embodied in the 2013 guidance, was an unlawful abdication of its responsibilities under FIFRA. But the guidance is not final agency action and, therefore, is not subject to judicial review. The 2013 guidance does not constitute agency action, as it did not “implement, interpret, or prescribe law or policy.” Nor did it describe any EPA requirements, since it comprised recommendations with which compliance is permissive, not mandatory. The 2013 guidance, moreover, lacked the finality required for judicial review under the APA.So while the court was "most sympathetic to the plight of our bee population and beekeepers," and perhaps "EPA should have done more to protect them," such policy decisions are for EPA to make.