A federal appeals court has again criticized the U.S. Environmental Protection Agency for approving a new pesticide without following Endangered Species Act requirements.

Despite characterizing this “failure to abide by the law” as “deja vu all over again,” the 9th U.S. Circuit Court of Appeals will allow sulfoxaflor to stay on the market while the agency studies its effects on threatened and endangered species.

In a 2-1 ruling, a panel of 9th Circuit judges “reluctantly” decided against overturning the insecticide’s approval because it would potentially be disruptive to agriculture and harmful to the environment if farmers resorted to more toxic chemicals.

Even so, the appellate court condemned the EPA’s “apparent habit” of ignoring the legally required species “effects determination” for new pesticides, then “recycling the same argument” during litigation about having insufficient resources.

“EPA cannot flout the will of Congress — and of the people — just because it thinks it is too busy or understaffed,” the 9th Circuit said.

Sulfoxaflor is manufactured by Corteva Agriscience, which has trademarked the chemical as Isoclast and included it in such products as Transform, Closer and XXPire. The compound is registered for use in the production of a variety of fruit, vegetable and field crops, as well as ornamental plants.

Though originally approved in 2013, sulfoxaflor is still considered a relatively new compound that interferes with an insect’s central nervous system and poses lower hazards than older chemicals.

The 9th Circuit’s ruling on sulfoxaflor comes on the heels of a similar decision in which the U.S. Court of Appeals for the D.C.

Circuit faulted EPA for commercializing another insecticide, cyantraniliprole, without analyzing its species impacts.

The EPA’s approval of sulfoxaflor was previously declared unlawful more than seven years ago, when the 9th Circuit ruled the agency hadn’t sufficiently considered its toxicity to bees.

Though EPA ultimately completed the pollinator studies required by that ruling, the agency re-approved the insecticide even though it lacked an Endangered Species Act “effects determination.”

According to the agency, delaying the insecticide’s registration until that process was done did not serve the public interest. Prioritizing sulfoxaflor would mean postponing the analysis of riskier pesticides, the agency said.

The 9th Circuit has characterized the EPA’s explanation as “unpersuasive,” chastising the agency for using excuses that it wouldn’t accept from others who violate government regulations.

“The EPA cannot set two standards of compliance under environmental law: a lenient standard for itself, and a stricter one for companies and individuals,” the ruling said.

In disregarding a “legislative command,” the agency “undermines the will of the people and ultimately our constitutional structure of government,” the ruling said.

The EPA appears to have adopted a “whack-a-mole strategy” toward the Endangered Species Act, repeatedly doing “little to comply with the law” until faced with litigation, the 9th Circuit said. “Parties should not have to file a lawsuit to compel EPA to follow the law.”

Aside from violating the Endangered Species Act, the EPA committed procedural errors when it fully re-approved sulfoxaflor in 2019 without a new public comment period, the ruling said. The 9th Circuit said the agency should “act immediately” to correct these deficiencies within six months.

In a dissenting opinion, Circuit Judge Eric Miller said the EPA’s legal shortcomings are “not merely technical or formal” but have raised “serious questions” about the chemical’s actual dangers and benefits.

The majority opinion has the “practical effect” of allowing the EPA to sidestep legally-required procedures because it considers sulfoxaflor “so useful,” he said.

Though the ruling correctly found EPA violated federal laws, the 9th Circuit should have overturned sufloxaflor’s approval until the EPA follows the proper legal processes, the judge said.

“But rather than set aside the EPA’s action, the court leaves it in place, gives the EPA a disapproving wag of a finger, and asks the agency to spend the next six months trying harder,” he said.

Even though the 9th Circuit hasn’t stopped the chemical’s continued use, the ruling was cheered by environmental advocates who challenged sulfoxafor’s approval.

The Center for Food Safety and Center for Biological Diversity nonprofits said the ruling re-affirms EPA’s role in protecting species and the environment, “not just the interests of the pesticide companies.”

Corteva Agriscience, which intervened in the lawsuit, was pleased with the 9th Circuit’s decision to keep sulfoxaflor on the market “without restriction and pursuant to current labeling.”

“With sulfoxaflor, farmers can use reduced rates of active ingredient in their fields to protect against key pests, reduce the number of applications and help mitigate the development of resistance,” the company said.

“EPA cannot flout the will of Congress — and of the people — just because it thinks it is too busy or understaffed.”

— Ninth Circuit Court of Appeals