In 2017, several environmental groups petitioned the Environmental Protection Agency (“EPA”) to close what the groups described as a “loophole” that allows crop seeds that had been coated with pesticides (referred to as “treated seeds”) to avoid regulation under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). EPA rejected that petition in 2022, determining that treated seeds met the requirements of FIFRA’s Treated Article Exemption (“TAE”) which exempts certain articles that have been coated in pesticides from FIFRA’s pesticide registration requirements. The groups that submitted the petition have now filed a lawsuit in federal court arguing that EPA’s denial is a violation of both FIFRA and the Administrative Procedures Act (“APA”).
The regulation of treated seeds has also caught the attention of state legislators, with some states considering proposals to either ban or more strictly regulate treated seeds. While this legislative trend is still fairly novel, New York is currently set to be the first state in the country to ban the sale of treated seeds. It is possible that other states may eventually follow.
Background
Pesticide treated or coated seeds are seeds that have been coated in a pesticide prior to planting in order to protect both the seed and plant from pests, usually insects or fungus. Currently, the most commonly available treated seeds are those that have been coated in neonicotinoids, a class of insecticide that targets the central nervous system of insects. While neonicotinoids are highly effective for controlling insects, they are regarded as being fairly safe for mammals.
The most common use for neonicotinoids is as a coating for treated seeds. A plant grown from a seed treated with neonicotinoids will absorb the insecticide from the seed’s surface into its plant tissue via its circulatory system. By absorbing the neonicotinoid treating, the plant itself becomes resistant to insect pests.
While neonicotinoids were originally considered to be relatively safe for beneficial insects such as bees and other pollinators, more recent research has shown that neonicotinoids do pose risks to bees and pollinators. These risks have raised concerns about the use of neonicotinoids. Additional concerns have been raised about the use of treated seeds due to the tendency of the neonicotinoid coating to come off the seed. Prior to and during planting, the dust-like coating can abrade off treated seeds and become airborne. After planting, the coating can enter the soil and make its way to both ground and surface water, resulting in wildlife contamination. Finally, questions have also been raised over the discard of unused treated seeds following an incident at an ethanol plant in Nebraska that used leftover treated corn seeds to make ethanol. Mishandling of the ethanol byproducts by the plant ultimately resulted in pollution of the surrounding area that contaminated surface water and killed local wildlife and bees.
Despite these concerns, treated seeds face relatively little regulation compared to other pesticide products. In the United States, pesticides are primarily regulated according to the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) which is administered by EPA. Under FIFRA, it is illegal to sell or use a pesticide that EPA has not officially registered for use. To register a pesticide, FIFRA requires EPA to make a finding that using the pesticide according to its label instructions will not cause “unreasonable adverse effects on the environment.” 7 U.S.C. § 136a(c)(5)(C). FIFRA defines “unreasonable adverse effects on 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).
Treated seeds, however, are exempt from FIFRA’s registration requirements under a regulatory rule known as the Treated Article Exemption (“TAE”). Under FIFRA, EPA is granted the authority to exempt from regulation any pesticide which EPA determines either “(1) to be adequately regulated by another Federal agency, or (2) to be of a character which is unnecessary to be subject” to FIFRA. Pursuant to this authority, EPA issued the TAE in 1988. The TAE states that “[a]n article or substance treated with, or containing, a pesticide to protect the article or substance itself (for example, paint treated with a pesticide to protect the paint coating, or wood products treated to protect the wood against insect or fungus infestation), if the pesticide is registered for such use.” 40 C.F.R. 152.25(a). EPA has exempted treated seeds from FIFRA regulation because they meet the definition of a treated article.
Various environmental groups have pushed back on EPA’s decision to exempt treated seeds. In 2016, the environmental interest group Center for Food Safety filed a lawsuit challenging EPA’s decision not to regulate treated seeds. The case was ultimately dismissed because EPA had taken no final agency action, such as issuing a regulation, that was subject to judicial review. This prompted the plaintiffs to file a petition with EPA in 2017 asking the agency to amend the TAE to clarify that it does not apply to treated seeds. Although EPA opened a public comment period on the petition in 2018, it would not issue a formal response until prompted to do so by a lawsuit in 2022. To learn more about that lawsuit, click here. EPA issued a final response to the 2017 petition in September 2022. In its response, EPA denied the petition, finding that the TAE appropriately covers treated seeds. The petitioners have filed a lawsuit to challenge EPA’s denial.
Recent Lawsuit
The plaintiffs in Ctr. for Food Safety v. U.S. Envtl. Protection Agency, No. 3:23-cv-02714 (N.D. Cal. 2023) filed suit against EPA on May 31, 2023, challenging the agency’s decision to deny their 2017 petition to regulate treated seeds. In their complaint, the plaintiffs raised claims under both FIFRA and the Administrative Procedure Act (“APA”) to argue that EPA’s interpretation of the TAE is unlawful.
The APA provides the requirements for federal agency decision making, including agency rulemaking. Under the APA, when reviewing a challenge to an agency action, courts are directed to “hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, as abused of discretion, or otherwise not in accordance with law.” 7 U.S.C. § 706(2)(a). Courts must also hold unlawful any agency action that is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 7 U.S.C. § 706(2)(c). An agency action will generally be considered arbitrary and capricious for purposes of the APA if “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a different in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983).
In their complaint, the plaintiffs argue that EPA’s denial of their petition is arbitrary and capricious because the agency’s interpretation of the TAE violates the APA. According to the plaintiffs, EPA both “entirely failed” to consider an important aspect of the problem, and the explanation EPA gave to support its denial of the petition runs “counter to the evidence.” In its denial of the plaintiffs’ petition, EPA claimed that treated seeds belong under the TAE because the pesticide coating protects the entire article – the seed and the plant that grows from the seed – and the TAE applies to “[a]n article or substance treated with, or containing, a pesticide to protect the article or substance itself[.]” (Italics added). 40 C.F.R. 152.25(a). The plaintiffs disagree. They argue that EPA’s interpretation violates the plain language of the TAE because the treated seeds are living plants as opposed to inanimate articles, and because the plant that grows from the treated seed is not the same thing as the seed itself. The plaintiffs note that the explicit examples in the text of the TAE – treated wood and paint – are inanimate articles, and that treated seeds are unlike the rest of the articles exempted under the TAE because they grow into something different than the original article. Even if treated seeds are articles, the plaintiffs claim that they ultimately grow into plants, at which point the neonicotinoids in their plant tissue have a different effect on the environment than when the plant was just a seed. The plaintiffs argue that this should make the TAE inapplicable to treated seeds because the pesticide coating is not meant to protect just the seed itself, but also the plant the seed ultimately becomes. According to the plaintiffs, EPA’s interpretation of the TAE to include treated seeds is contrary to the plain language of the regulation and therefore violates the APA.
Next, the plaintiffs argue that EPA’s denial of their petition is unlawful because EPA’s interpretation of the TAE exceeds its statutory authority under FIFRA. FIFRA allows EPA to exempt from regulation any pesticide products that are “of a character” not requiring regulation under FIFRA. 7 U.S.C. § 136w(b). The plaintiffs argue that the nature of treated seeds requires them to be regulated as pesticides because the neonicotinoid coating is mobile and can easily move off the seed and into the air, soil, and water where the pesticide can cause environmental harm. Because FIFRA prohibits the registration of any pesticide that is found to cause unreasonable adverse effects on the environment, the plaintiffs argue that it exceeds EPA’s statutory authority to exempt products that cause unreasonable adverse effects on the environment from FIFRA regulation.
The plaintiffs have asked the court to set aside both EPA’s denial of the plaintiffs’ petition, and to set aside the TAE itself as applied to treated seeds.
At the State Level
Courts are not the only place where the topic of treated seeds regulation is receiving attention. Some states legislators have proposed bills to regulate the sale and use of treated seeds within their state boundaries. The New York State Legislature recently adopted a ban on treated seeds, while legislators in California have introduced bills to regulate treated seeds.
Lawmakers in New York recently approved a bill to ban seeds treated with neonicotinoids from being sold or distributed within the state. The bill, known as the Birds and Bees Protection Act, would go into effect on January 1, 2027 if signed into law. After that date, it will become illegal to sell or distribute any corn, soybean, or wheat seeds coated with neonicotinoids in the state of New York. The bill has passed both houses of the state legislature and is currently awaiting further action from Governor Kathy Hochul.
In California, lawmakers have introduced A.B. 1042, which would require the California Department of Pesticide Regulation to develop regulations for treated seeds. Specifically, the bill would require the implementation of regulations to govern the “use and disposal” of any seeds treated with a pesticide. The bill would also ban the use of treated seeds if the pesticide used to coat seeds were not registered for use in California. Neonicotinoids are currently registered for use in California, however a law that passed the state’s legislature last year would have banned them. Although Governor Gavin Newsom ultimately vetoed the bill, it is possible that a future ban could be instated. If A.B. 1042 becomes law, then any future neonicotinoid ban would effectively end the use of neonicotinoid-treated seeds in California.
Going Forward
It is currently unclear how the court will rule in Ctr. for Food Safety v. U.S. Envtl. Protection Agency, or if other states will follow New York and California in proposing to regulate treated seeds. However, if the court finds that EPA’s denial of the plaintiffs’ petition was unlawful and directs EPA to reconsider its decision, it is possible that treated seeds could face stricter regulation at the federal level. If the court finds that EPA’s denial of the petition was appropriate, it is still possible that state-level bans or restrictions on treated seeds could increase in the coming years, particularly in states that have already restricted or banned neonicotinoids or other pesticides. Whatever the outcome of the current lawsuit, it seems likely that additional attempts to regulate treated seeds will be on the horizon.
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.
For more National Agricultural Law Center resources on pesticides, click here.