A federal court in the Northern District of California has recently ruled that the Environmental Protection Agency (“EPA”) does not have to register seeds that have been treated with neonicotinoids as pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). In a ruling issued on November 20, 2024, the court found that EPA had appropriately exempted seeds coated in neonicotinoids from FIFRA’s registration requirements through the statute’s Treated Article Exemption (“TAE”). The lawsuit was brought by environmental groups who had filed a petition with EPA requesting that the agency register pesticide-treated seeds as individual pesticide products. When EPA declined, the groups filed suit, arguing that EPA had mis-interpreted the TAE. The court disagreed and concluded that EPA had correctly applied the TAE to treated seeds.

Background

Pesticide-coated or treated seeds are seeds that have been coated in a pesticide prior to planting in to protect the seed and resulting plant from pests such as insects or fungus. The most commonly available treated seeds are those that have been coated in neonicotinoids, a group of insecticides that target the nervous system of insects. When a seed treated with neonicotinoids sprouts, the plant that it grows into will absorb the insecticide from the seed’s surface into its plant tissue and become resistant to insects. While neonicotinoids were originally considered to be relatively safe for beneficial insects like bees and other pollinators, more recent research has shown that neonicotinoids do pose certain risks to pollinating insects. These risks have raised concerns about the use of neonicotinoids, including their use as coating for treated seeds. That concern has prompted an interest in seeking stricter regulation of treated seeds at the federal level.

Currently, EPA regulates treated seeds through FIFRA. Under FIFRA, pesticide products may not be sold or distributed in the United States until EPA issues a registration. To register a pesticide, FIFRA requires EPA to determine that using the pesticide as intended 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). However, FIFRA does not require all pesticide products to be formally registered. The statute exempts certain products from registration requirements in a handful of specific circumstances, including the Treated Article Exemption.

Under FIFRA, EPA is granted the authority to exempt from regulation any pesticide which the agency 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. 7 U.S.C. § 136w(b). Pursuant to that authority, EPA issued the TAE in 1988. The TAE provides 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 weed against insect or fungus infestation), if the pesticide is registered for such use.” 40 C.F.R. § 152.25(a). EPA has long exempted treated seeds from formal FIFRA registration because they meet the definition of a treated article.

In 2017, various environmental groups filed a petition with EPA asking the agency to amend the TAE to clarify that the exemption does not apply to treated seeds. EPA ultimately issued an answer to that petition in 2022. In its response, EPA denied the petitioners’ request, finding that the TAE is appropriately applied to treated seeds. Specifically, EPA concluded that treated seeds belong under the TAE because the pesticide coating protects the entire article – the seed and the plant that grows from it – and the TAE applies to articles that have been treated with a pesticide “to protect the article or substance itself[.]”

The petitioners filed a lawsuit to challenge EPA’s denial of their petition in 2023, arguing that EPA had violated the plain language of the TAE because the treated seeds are living plants instead of inanimate articles and because the plant that grows from the treated seed is not the same thing as the seed itself. Ultimately, the court disagreed and concluded that EPA had appropriately interpreted the TAE to cover treated seeds.

Court Decision

In Ctr. for Food Safety v. U.S. Envtl. Protection Agency, No. 3:23-cv-02714 (November 20, 2024), the court considered whether EPA had appropriately exempted treated seeds from FIFRA’s registration requirement under the TAE. The court concluded that the seeds were properly exempted after finding that EPA’s interpretation of the TAE was reasonable.

To determine whether EPA had appropriately interpreted the TAE, the court first noted that “federal courts have traditionally deferred to agency interpretations of their own regulations.” That principle was established by the United States Supreme Court in Auer v. Robbins, 519 U.S. 457 (1997). More recently, the Supreme Court has clarified that courts should defer to an agency’s interpretation of its own regulation if the regulation is genuinely ambiguous, if the interpretation is reasonable or falls within “the zone of ambiguity,” and if the “character and context” of the interpretation is entitled to “controlling weight.”

The court in Ctr. for Food Safety v. U.S. Envtl. Protection Agency began its analysis of EPA’s interpretation of the TAE as applied to neonicotinoid treated seeds by considering whether the regulation is ambiguous. To do so, the court considered the text, structure, and history of the TAE. In their complaint, the plaintiffs made two textual arguments for why the TAE could not be applied to treated seeds. First, that a seed is not an “article”; and second, that the phrase “to protect the article or substance itself” should not be interpreted as applying to treated seeds when the pesticide coating is meant to protect the plant that grows from the seed rather than the seed itself. The court quickly determined that the word “article” is ambiguous and could “reasonably be read to include a seed,” citing various dictionary definitions. The court then determined that the phrase “to protect the article or substance itself” was also ambiguous, after determining that it was difficult to tell at what point a seed becomes something other than a seed. The court was unconvinced by the plaintiffs’ argument that a seed and a plant were two separate articles.

After concluding that the text of the TAE was ambiguous, the court considered the structure and history of the regulation. According to the court, both those factors also weighed in favor of finding the TAE to be ambiguous. The plaintiffs compared the TAE to other FIFRA exemptions which exclude things like pheromones, embalming fluids, and minimum risk pesticides such as garlic and citronella from formal registration. The plaintiffs argued that those exemptions were “far more innocuous” than treated seeds, and that exempting treated seeds is therefore inconsistent with the general structure of FIFRA. In response, EPA argued that neonicotinoid treated seeds were exempted from registration not because they are innocuous, but because registration would be redundant as the text of the TAE requires the treating pesticide to be already “registered for such a use.” The court was persuaded by EPA’s argument and found that the structure of the TAE weighed in favor of ambiguity. Similarly, the court found that the history of the regulation also suggests that the TAE is ambiguous as applied to treated seeds. The TAE was established in 1988. Prior to that time, EPA had been unclear about whether treated seeds should be regulated as pesticides and subject to registration requirements. However, since the TAE was adopted, EPA has consistently applied the TAE to treated seeds, despite releasing a paper in 2000 that referred to treated seeds as pesticides. While the plaintiffs argued that the 2000 paper precluded treated seeds from being exempted by the TAE, the court disagreed after once again being persuaded by EPA’s argument that registration of treated seeds themselves would be redundant because the treating pesticide must be registered for that purpose.

After determining that it was ambiguous whether the TAE could be applied to treated seeds, the court considered whether EPA’s interpretation was reasonable and “within the zone of ambiguity.” Because EPA had based its interpretation on substantive expertise and there was no evidence that the decision was poorly reasoned, the court concluded that EPA’s interpretation of the TAE was reasonable and therefore deserving of judicial deference. Because the court found that EPA’s interpretation of the TAE as applied to neonicotinoid treated seeds was reasonable, it concluded that EPA’s denial of the plaintiffs’ 2017 petition to exclude treated seeds from the TAE was also reasonable. Accordingly, the court resolved the case in favor of EPA.

Conclusion

While interest in the regulation of treated seeds has grown in recent years, the ruling in Ctr. for Food Safety v. U.S. Envtl. Protection Agency indicates it may be unlikely for treated seeds to be registered as individual pesticide products under FIFRA. For the foreseeable future, it is likely that treated seeds will continue to be exempted from registration requirements under the TAE. Efforts to regulate treated seeds on a state level may continue, with both New York and California recently taking steps to tighten treated seed regulation. However, at the federal level, it treated seeds will continue to be exempted from FIFRA’s registration requirements under the TAE.

 

To read the court’s decision in Ctr. for Food Safety v. U.S. Envtl. Protection Agency, click here.

To read the text of FIFRA, click here.

For more National Agricultural Law Center resources on pesticides, click here.

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