In December 2021, two environmental groups, the Center for Food Safety and Pesticide Action Network North America, filed a lawsuit against the Environmental Protection Agency (“EPA”) over what the groups refer to as a “regulatory loophole” in EPA’s administration of the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) that allows seeds coated in pesticides to “evade” the statute’s registration and labeling requirements. The environmental group plaintiffs filed a petition for rulemaking with EPA in 2017, requesting that the agency draft and adopt regulations that would close the loophole. According to the plaintiffs, EPA failed to respond to that petition in the mandatory timeframe. Therefore, the plaintiffs have filed the lawsuit Ctr. for Food Safety v. U.S. Envtl. Protection Agency, No. 3:21-cv-09640 (N.D. Cal. Dec. 14, 2021) asking the court set a specific date by which EPA has to respond to the plaintiffs’ petition.

FIFRA & FIFRA Exemptions

FIFRA is the primary federal statute regulating pesticide use in the United States. The statute is administered by EPA, which states that the main goal of FIFRA is “to ensure that, when applied as instructed, pesticides will not generally cause unreasonable risk to human health or the environment.” To achieve this goal, FIFRA requires all pesticides used in the United States to be registered for use by EPA according to FIFRA standards.

Under FIFRA, a pesticide is defined as “any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest[.]” 7 U.S.C. § 136(u). In order to register a pesticide for use, FIFRA requires EPA to ensure that the pesticide will not cause “unreasonable adverse impacts to the environment” when used according to its intended function. 7 U.S.C. § 136a(c)(5)(C). FIFRA goes on to define “unreasonable adverse impacts to the environment” as “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide[.]” 7 U.S.C. § 136(bb). In other words, EPA can only register pesticides that it finds that the benefits of using the pesticide are outweighed by the risks the pesticide poses to human health or the environment. The registration process ultimately results in the development of a label that provides use instructions for the pesticide. Every pesticide product sold in the United States must have its registered label affixed to its packaging. FIFRA labels are legally enforceable, meaning that it is a violation of FIFRA to use a pesticide product inconsistent with its labeling.

There are some limited exemptions to FIFRA’s registration and labeling requirements. One of these exemptions is the “treated articles or substances” exemption, typically referred to as simply the “treated article” exemption. A treated article or substance is defined as “an article or substance treated with, or containing, a pesticide to protect the article or substance itself […] if the pesticide is registered for such use.” 40 C.F.R. § 152.25(a). EPA identifies both paint treated with a pesticide to protect the paint coating, and wood products treated with a pesticide to protect the wood against infestations of insects or fungus as examples of treated articles. In other words, EPA applies the treated article exemption to products that contain pesticides solely for the purpose of protect the product itself. Such products would not need to be independently registered under to FIFRA in order to be legally sold and used.

It is this treated article exemption that is the topic of the lawsuit filed by plaintiffs in December 2021. According to the plaintiffs, EPA has been wrongly using the treated article exemption to allow the sale of seeds that have been coated in pesticides. The plaintiffs argue that the text of the treated article exemption disallows pesticide-coated seeds, and they urge EPA to close what they see as a loophole in the regulatory scheme of FIFRA.

Pesticide-Coated Seeds

Pesticide-coated seeds, or treated seeds, are crop seeds that have been coated in a layer of pesticides prior to sale and planting. The pesticide coating is intended to limit crop damage from fungus and insects. Seeds treated with insecticides are meant to take the insecticide into plant tissue to protect it from stubborn soil pests while seeds treated with fungicides are meant to be protected from various soil-dwelling diseases. The practice of using pesticide-coated seeds in corn, soybean, and other row crops has become commonplace, with neonicotinoids one of the most common types of insecticides used to treat seeds. For more information about the use of pesticide-coated seeds, click here.

Neonicotinoids are a category of systemic pesticides chemically related to nicotine. Neonicotinoids work by affecting receptors in the nervous system of insects resulting in paralysis and death. In recent years, neonicotinoids have been found to pose a threat to pollinating insects such as bees and butterflies. Many environmental groups are opposed to both the use of neonicotinoids, and seeds coated with neonicotinoids. The Center for Food Safety, one of the plaintiffs in Ctr. for Food Safety v. U.S. Envtl. Protection Agency, claims that pollinators and birds are harmed by seeds coated in neonicotinoids because the neonicotinoids remain present in plants grown from coated seeds. Pollinators are then exposed to neonicotinoids through pollen from those plants, while birds are exposed by eating both parts of the plants and sometimes the seeds themselves. Environmental groups argue that EPA that should regulate pesticide-coated seeds like any other pesticide so that the Agency can determine whether use of the seeds complies with FIFRA’s “unreasonable adverse effects” standard.

Current Lawsuit

The lawsuit filed by the plaintiffs in December 2021 has its origins in a similar lawsuit the plaintiffs brought in 2016. In early 2016, the plaintiffs filed a lawsuit against EPA concerning pesticide-coated seeds and the treated article exemption. In that initial lawsuit, the plaintiffs asked the court to review a guidance document issued by EPA in 2013 stating that pesticide-coated seeds could be exempt from FIFRA requirements under the treated article exemption. According to the plaintiffs, pesticide-coated seeds did not meet the requirement for the treated article exemption because the pesticides used on the seeds were meant to protect the plants that grew from the seeds, not just the seeds themselves. However, the court never reached the merits of the plaintiffs’ claims. Instead, the lawsuit was resolved in favor of EPA after the court determined that it could not review the 2013 guidance document.

The Administrative Procedure Act (“APA”) governs the process by which federal agencies develop and issue regulations. It also includes requirements for how and when agency regulations can be challenged in court. The APA states that courts may only review any “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 706. In Bennet v. Spear, 520 U.S. 154 (1997), the United States Supreme Court established a two-part test to determine whether an agency action constitutes a final agency action. First, the action must represent the “consummation of the agency’s decisionmaking process.” Second, it must also be an action “by which rights or obligations have been determined, or from which legal consequences will flow.” When the plaintiffs in Ctr. for Food Safety v. U.S. Envtl. Protection Agency brought their first lawsuit in 2016, the court dismissed the case because it determined that the 2013 guidance document did not have the finality necessary to be a final agency action. In other words, the 2013 guidance document did not represent the consummation of EPA’s decisionmaking on pesticide-coated seeds.

After the 2016 lawsuit was resolved in favor of EPA, the plaintiff environmental groups filed a petition with EPA in 2017 requesting that the Agency draft and adopt a final rule concerning pesticide-coated seeds. Under the APA, federal agencies are required to “give an interested person the right to petition for the issuance, amendment or repeal of a rule.” 5 U.S.C. § 533(e). The plaintiffs filed a petition with EPA asking it to amend the treated article exemption rule to clarify that it does not apply to pesticide-coated seeds. The APA also requires federal agencies to address petitions for rulemaking “within a reasonable time.” 5 U.S.C. § 555(b). Although EPA initially took public comments on the petition submitted to its by the plaintiffs in 2017, it has yet to issue a formal response or answer to the petition. The plaintiffs have now filed the current lawsuit against EPA for its failure to address the 2017 petition within a reasonable time.

Under the APA, courts are instructed to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.SC. § 706(1). The plaintiffs argue that EPA has unlawfully withheld or unreasonably delayed agency action by failing to respond to a rulemaking petition for nearly five years. Therefore, the plaintiffs are asking the court to require EPA to respond to the 2017 petition by a specific date determined by the court.

Going Forward

If the court grants the plaintiffs’ request, EPA would be required to make a formal response to the 2017 petition for rulemaking. That response could be either a denial of the petition, or EPA could take steps to begin drafting the rule requested by the plaintiffs. If EPA denies the petition, that would likely be considered a final agency action, and the plaintiffs could file another lawsuit against EPA challenging the denial. If EPA instead decides to grant the plaintiffs’ petition, then it is possible that pesticide-coated seeds may no longer fall entirely under the treated article exemption.


To read the plaintiffs’ complaint in Ctr. for Food Safety v. U.S. Envtl. Protection Agency, click here.

To read the 2017 petition, click here.

To read the text of FIFRA, click here.

To read the text of the APA, click here.