The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), enforced by the U.S. Environmental Protection Agency (EPA), regulates the distribution, sale, and use of all pesticides in the United States. Under this law the following regulations apply:
All pesticides distributed or sold in the United States must be registered (licensed) by EPA. Before EPA may register a pesticide under FIFRA, the applicant must show, among other things, that using the pesticide according to specifications "will not generally cause unreasonable adverse effects on the environment.'"
This act also provides the EPA administrator with significant discretion to exempt any federal or state agency from any part of that provision "if the Administrator determines that emergency conditions exist which require such exemption.” Bill Jordan, the former EPA deputy director in the Office of Pesticide Programs from 2012 to 2015, told us by phone in February 2019 that “the number of such requests was 100 to 200 over the last decade or so.”
On 18 February 2019, the nonprofit Center for Biological Diversity highlighted recent emergency exemptions made by the EPA under President Donald Trump’s leadership regarding the pesticide sulfoxaflor, whose use is officially limited due to its potential toxicity to bees who serve a crucial ecological role as pollinators:
The U.S. Environmental Protection Agency (EPA) reported last week that in 2018 it issued so-called "emergency" approvals to spray sulfoxaflor -- an insecticide the agency considers "very highly toxic" to bees -- on more than 16 million acres of crops known to attract bees ...
"Spraying 16 million acres of bee-attractive crops with a bee-killing pesticide in a time of global insect decline is beyond the pale, even for the Trump administration," said Nathan Donley, a senior scientist with the Center for Biological Diversity. "The EPA is routinely misusing the 'emergency' process to get sulfoxaflor approved because it's too toxic to make it through normal pesticide reviews."
While the cited information was accurate, the suggestion that such an exemption was a new maneuver employed only by the Trump administration was misleading. In 2012, for example, President Barack Obama’s EPA issued specific exemptions for sulfoxaflor on cotton crops in four states. And in 2014, Obama’s EPA authorized the use of sulfoxaflor on sorghum crops in eight states. Again in 2015, Obama’s EPA authorized the use of sulfoxaflor on sorghum in 13 states. And during a period between 2016 and 2017 that saw the transition between the Obama and the Trump administrations, the EPA authorized the use of sulfoxaflor for both cotton and sorghum crops in 19 states.
The EPA originally registered sulfoxaflor in May 2013, but this action was vacated by the 9th Circuit Court of Appeals after pollinator advocates petitioned for a new review of the registration. “In September 2015, the court found that the registration was not supported by evidence to demonstrate that it would not harm bees and vacated the registration,” the EPA website notes. The Center for Biological Diversity, in a report published in December 2017, argued that the EPA had been misusing these emergency exemptions as "backdoor authorization." The organization described emergencies the exemptions were issued in response to, such as infestations of the tarnished plant bug and the sugarcane aphid, as “routine and foreseeable occurrences.”
The problem, according to Jordan, is that not applying a pesticide is no option for farmers whose cotton is experiencing a tarnished plant bug infestation, or whose sorghum is sustaining a sugarcane aphid infestation. “Farmers don't like to see their crops eaten up by insects,” he said. It was not clear, Jordan told us, whether the products that would replace sulfoxaflor would be less toxic to bees than the sulfoxaflor itself. However, this argument was deemed unconvincing by the 9th Circuit Court of Appeals in their decision vacating sulfoxaflor’s original registration.
An EPA Office of the Inspector General report issued in September 2018 was critical of the current emergency protocols as well, concluding that the EPA Office of Pesticide Programs “does not have outcome measures in place to determine how well the emergency exemption process maintains human health and environmental safeguards”.
That office made several recommendations for improvements to the emergency exemption system regarding data use and collection and health outcome benchmarks. The EPA has accepted some, but not all, of these recommendations.