Ninth Circuit: Pesticide-Coated Seeds Lawsuit Challenges EPA Exemption

• Environmental groups are appealing a lower court ruling that upheld the EPA's "treated article exemption" for pesticide-coated seeds.
• This exemption allows pesticide-treated seeds, often coated with neonicotinoids, to avoid federal registration and detailed labeling requirements under FIFRA.
• Plaintiffs argue that without registration, there is no enforceable labeling or sufficient data to prevent misuse and protect pollinators.
• A Ninth Circuit judge questioned the practical impact of a successful appeal, given the EPA's consistent stance on the seeds' safety.
• The Department of Justice contends the lawsuit challenges existing EPA determinations and was filed outside the proper timeframe.

Should the Ninth Circuit rule in favor of the environmental groups, it could necessitate a reevaluation of the "treated article exemption" and potentially lead to new pesticide-coated seeds registration requirements under FIFRA.

Environmental advocacy groups recently presented their case before a Ninth Circuit panel, seeking to overturn a lower court's decision concerning the regulation of pesticide-coated seeds. The Center for Food Safety and Pesticide Action Network are appealing a ruling that upheld the Environmental Protection Agency's (EPA) interpretation of its "treated article exemption," which currently allows these seeds to bypass federal registration requirements. This legal challenge, often referred to as the Ninth Circuit pesticide-coated seeds lawsuit, centers on the argument that this exemption leaves a significant regulatory gap for products that are effectively pesticides.

The core of the dispute revolves around the fact that, unlike pesticide sprays, seeds treated with insecticides are not subject to the same rigorous registration process under federal law. This distinction means they lack the detailed and enforceable labeling typically mandated for pesticides. Many of these seeds are coated with neonicotinoids, a class of insecticides known to target insect central nervous systems, which environmental groups contend pose risks to pollinators and contribute to water contamination.

The current legal action stems from a 2023 lawsuit filed by the Center for Food Safety and Pesticide Action Network against the EPA. This followed the agency's 2022 denial of a petition that had requested the registration of treated seeds under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). In November 2024, Senior U.S. District Judge Susan Illston sided with the EPA, concluding that the agency had acted based on the best available information when it rejected the petition.

Plaintiffs argue that requiring pesticide-coated seeds registration would compel the EPA to demonstrate that these products meet federal safety standards. Amy van Saun, a senior attorney for the Center for Food Safety, emphasized to the appellate panel that registration would lead to comprehensive product labels. These labels would include crucial information such as mitigation measures, requirements for personal protective equipment, and proper disposal instructions, which are currently absent. Without such enforceable labeling, she contended, there is no effective mechanism to prevent or address the misuse of these pesticide-treated seeds.

During the recent Ninth Circuit hearing, U.S. Circuit Judge Michelle T. Friedland, an appointee of Barack Obama, posed pointed questions to the plaintiffs' counsel regarding the practical outcomes of their appeal. Judge Friedland expressed skepticism about the efficacy of the proposed legal remedy, noting that the EPA has consistently affirmed its belief in the safety of these seeds. She questioned how a judicial review, essentially a second examination, would alter the agency's established position.

The Department of Justice, representing the EPA, countered the environmental groups' arguments on both procedural and substantive grounds. Christopher Anderson, arguing for the DOJ, asserted that the plaintiffs' challenge should have been filed directly with the appeals court within the prescribed timeframe. Furthermore, he contended that the specific arguments being made by the environmental groups effectively challenge determinations the EPA already made when it initially registered the pesticides used on seeds, asserting that such uses are consistent with FIFRA's registration standards. Judge Friedland appeared unconvinced by the plaintiffs' assurances that new procedures would lead to a different result, given the agency's clear stance.

The outcome of this EPA treated article exemption appeal holds significant implications for the future of pesticide regulation in the United States. Should the Ninth Circuit rule in favor of the environmental groups, it could necessitate a reevaluation of the "treated article exemption" and potentially lead to new pesticide-coated seeds registration requirements under FIFRA. This shift would introduce a new layer of oversight for products that have historically operated under a different regulatory framework.

For clients in the agriculture and chemical manufacturing sectors, a successful neonicotinoid seed regulation challenge could mean substantial changes to compliance obligations. New labeling mandates, safety data requirements, and enforcement mechanisms would likely emerge, impacting product development, distribution, and usage. The Center for Food Safety EPA lawsuit underscores a broader push for increased accountability and transparency in the application of pesticides, particularly those with known environmental concerns.

Lawyers advising clients in agriculture or chemical manufacturing should monitor this Ninth Circuit appeal for potential changes to EPA registration and labeling requirements for pesticide-treated seeds, which could create new compliance burdens if the 'treated article exemption' is overturned.

Source: Original reporting via news reports.