At the WWKC Law Blog, we like to discuss not only issues and events facing our firm and clients, but also the compelling legal issues facing our country in general. Ours is a country founded on laws, and whatever your position on how to interpret the Constitution, it is inarguable that the Constitution governs us and our ideals as a nation. We all must be aware of the intersection of the Constitution with our government, with our laws, with our economy, and with our lives.

With that in mind, I wanted to briefly discuss an issue that links different states, our environment, and the law. In March of 2013, commercial beekeepers and advocacy groups including Sierra Club and the Center for Food Safety filed suit against the Environmental Protection Agency in Federal Court in California: (1) claiming that the EPA violated federal law to improperly allow registration of certain pesticides (clothianidin and thiamethoxam); (2) alleging that the EPA failed to adequately respond to Plaintiffs’ petition to suspend the EPA’s approval of clothianidin; and (3) seeking an injunction that would bar continued use of the pesticides based on the harmful effects of the pesticides on honeybees. Multiple pesticide manufacturers voluntarily intervened in the lawsuit.

Plaintiffs claim that the pesticides, as used on various crops, indiscriminately also kill honeybees. In turn, the death of honeybees substantially affects California almond farmers and others who rely on the honeybees to pollinate their crops. Plaintiffs allege that without the honeybee pollination, farmers have incurred losses of as much as 50%, and are left with few remedies to address their losses.

This case (Ellis et al v. Bradbury et al., Case No. 3:13-cv-01266-MMC) is currently pending and awaiting hearings on Defendants’ Motions to Dismiss scheduled for the end of January 2014. Defendants contend that the lawsuit should be dismissed for failure to state a claim and on jurisdictional grounds. It will be interesting to see if the lawsuit survives dismissal, and if so, what the discovery phase will unearth regarding the effect of the pesticides on the honeybee population, the impact to the economy, and whether the EPA followed proper procedures such as consulting with federal wildlife agencies regarding the potential impacts to endangered species.

However, at the core of the matter is that the lawsuit challenges the EPA’s expedited approval process known as “conditional registration”. In this case, the two pesticides at issue, clothianidin and thiamethoxam, were approved under conditional registration. Thus, the crux of the case is not necessarily the effects of pesticides on honeybees and the consequential economic effects, but rather, the implementation, effectiveness, and enforcement of the EPA’s regulatory policies. The underlying and perhaps more substantive issue in this case is to scrutinize the EPA and its policies, to determine whether the EPA effectively enforces its own policies, faithfully administers its self-regulatory powers and scheme, and adequately complies with federal law and cooperates with other agencies.

When considering this case in a broad sense, there are multiple, interrelated but potential conflicting interests:

  • First, there is the right of farmers to rely on the government to approve pesticides and to then use those pesticides on their crops to produce higher yields and increase their economic benefit.
  • Second, there is the right of other farmers who rely upon honeybees to pollinate their crops to not have those honeybees indiscriminately destroyed by the use of said pesticides by other farmers, thereby decreasing their economic benefit.
  • Third, there is the authority and role of the EPA in a situation that presents an inherent conflict of interest that is, approving a pesticide that benefits one group while harming another group.
  • Fourth, there is the question of whether the EPA, an agency created to protect the environment, is under a statutory or fiduciary obligation to prevent the indiscriminate destruction of honeybees as opposed to approving a pesticide that is used to curtail a natural environmental occurrence (insects eating crops) in the name of economic benefit. This case begs the questions: what is the EPA’s purpose and is the agency wearing too many hats?
  • Finally, this case really seems to target the EPA’s expedited approval process, and presents seemingly viable questions to the legality and efficacy of conditional registration. While the commercial beekeepers are assuredly concerned about the economic impact, advocacy groups like Sierra Club are not traditionally concerned with economic realities. It seems more likely that such advocacy groups seek to check the power of the EPA to “fast track” approvals for things that could harm the environment.

To the critical eye, this broad based attack on the EPA by and through the honeybee situation is a classic approach to litigating issues and not necessarily the facts presented by the case. This case presents multiple compelling legal and practical issues and it will be interesting to watch the case develop through 2014.