In a victory for environmental and farmworker groups, an appeals court has overturned federal approval of a controversial pesticide that supporters say could help fight a disease that has caused heavy damage in Florida’s citrus industry.
The decision this week by a panel of the U.S. Circuit Court of Appeals for the District of Columbia came amid federal and state legal battles about the use of the pesticide aldicarb on citrus crops.
The U.S. Environmental Protection Agency in January approved the use of aldicarb in the production of Florida oranges and grapefruit. That drew a court challenge from the Center for Biological Diversity, the Environmental Working Group and the Farmworker Association of Florida, which argue, in part, that the pesticide threatens the health of workers and wildlife.
In April, the Florida Department of Agriculture and Consumer Services denied an application to use aldicarb, spurring a separate state challenge from the pesticide company AgLogic Chemical, LLC.
This week’s decision by the federal appeals court came after the Environmental Protection Agency acknowledged that it had not made a required “effects determination” under the Endangered Species Act before giving approval in January, shortly before former President Donald Trump left office.
The court approved a motion by the environmental and farmworker groups to vacate approval, or “registration,” of the pesticide.
Florida Agriculture Commissioner Nikki Fried issued a statement late Tuesday praising the decision.
This ruling acknowledges that the Trump administration’s registration of aldicarb violated federal law and that the pesticide’s environmental effects would remain unconsidered for years to come. ~Agriculture Commissioner Nikki Fried
“This ruling acknowledges that the Trump administration’s registration of aldicarb violated federal law and that the pesticide’s environmental effects would remain unconsidered for years to come,” Fried said. “I remain fully committed to working with Florida’s proud citrus growers to support solutions for our state’s signature crop without risking human, animal and environmental health.”
But key players in Florida’s citrus industry have backed the use of aldicarb as the disease citrus greening has caused widespread damage. Florida Citrus Mutual and the Florida Fruit & Vegetable Association filed a friend-of-the-court brief in April on behalf of the EPA and said “the iconic Florida orange and its cousin the Florida grapefruit are being quickly annihilated” by citrus greening, which is transmitted by a type of insect.
“Florida’s citrus sector stands at the deadly brink. (The EPA’s) conditional registration of aldicarb is a scientifically valid means of saving much of what remains of Florida’s citrus production,” the brief filed in the federal appeals court said.
The EPA in April asked the federal appeals court to send the issue back to the agency to address the Endangered Species Act determination --- but argued that approval should not be overturned.
“EPA acknowledges that it did not make an ESA (Endangered Species Act) effects determination prior to conditionally approving the use of aldicarb on oranges and grapefruit in Florida,” the agency said in a filing. “Accordingly, EPA respectfully requests that this court remand the challenged conditional registration approval to allow EPA to make an ‘effects determination’ and take any additional follow-up actions as appropriate.”
But the appeals court in a two-page order Monday granted the request of the environmental and farmworker groups for what is known legally as “vacatur.”
“Vacatur is further warranted in light of the seriousness of the admitted error and the error’s direct impact on the merits of the EPA’s registration decision given the agency’s finding as to the acute toxicity of aldicarb,” the order said. “In addition, vacatur would not result in material disruption because aldicarb has not been authorized for use on oranges and grapefruit in Florida for nearly a decade, and because at present the Florida Department of Agriculture and Consumer Services has denied intervenor’s (AgLogic’s) application for state registration for the use of aldicarb on oranges and grapefruit.”
Aldicarb was approved for use on Florida oranges in 1978, but then-manufacturer Bayer Crop Science canceled a registration for its use in 2010, according to a document filed in the state Division of Administrative Hearings. In 2017, however, AgLogic’s brand of aldicarb was approved by the Department of Agriculture and Consumer Services for the production of cotton and peanuts.
The January approval for use in the citrus industry included conditions such as limiting the use of aldicarb to 100,000 acres of oranges and grapefruit in Florida and monitoring drinking-water wells near sites where the pesticide was applied. While the EPA gave approval, the use of aldicarb also needed a sign-off from the Department of Agriculture and Consumer Services.
Update: Full statement from AgLogic Chemical, LLC
“We are extremely disappointed by today’s ruling which vacated EPA’s recent registration of Aldicarb, a product that had for years, safely provided critical pest control to Florida’s citrus industry. The Court’s decision centered on procedural Endangered Species Act (ESA) compliance issues and did not disagree with EPA’s registration decision on any other grounds. Virtually all pesticides in Florida have the same ESA issue, yet our product was singled out. Unfortunately, this means that the threatened citrus industry may not have this critical tool to fight the disease that is devastating their crops.
“AgLogic sought to reregister Aldicarb for use on citrus, at the suggestion of the EPA, and the previous encouragement of the Florida Department of Agriculture and Consumer Services (FDACS), together with strong support of the threatened Florida citrus industry. AgLogic’s federal registration included a comprehensive stewardship program to train and educate users, applicators and farmworkers to safely use the product, and to protect the environment. Aldicarb had been used routinely for several decades with no observed adverse effects reported on endangered species in citrus groves in the past, and Aldicarb is currently approved for use in Florida on cotton and peanuts.
“While we consider next steps, we are committed to working proactively with EPA, FDACS and the iconic citrus industry on a resolution that will bring relief to Florida citrus producers, while protecting users and the environment. Our top priority is safeguarding the livelihoods of Florida’s farmers, their families, and communities while providing safe and effective products.”
