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`Case 3:21-cv-09640-JSC Document 1 Filed 12/14/21 Page 1 of 23
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`SYLVIA SHIH-YAU WU (CA Bar No. 273549)
`GEORGE KIMBRELL (Pro Hac Vice pending)
`Center for Food Safety
`303 Sacramento Street, 2nd Floor
`San Francisco, CA 94111
`Phone: (415) 826-2770
`Emails: gkimbrell@centerforfoodsafety.org
`
`swu@centerforfoodsafety.org
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`
`
`Counsel for Plaintiffs
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`
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`
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`THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`Case No. 21-9640
`
`
`COMPLAINT FOR DECLARATORY
`AND EQUITABLE RELIEF
`
`Administrative Procedure Act Case
`
`
`
`CENTER FOR FOOD SAFETY and
`PESTICIDE ACTION NETWORK NORTH
`AMERICA,
`
`
`Plaintiffs,
`
`v.
`
`UNITED STATES ENVIRONMENTAL
`PROTECTION AGENCY and MICHAEL
`REGAN, ADMINISTRATOR, UNITED
`STATES ENVIRONMENTAL
`PROTECTION AGENCY,
`
`
`
`Defendants.
`
`
`COMPLAINT FOR DECLARATORY & EQUITABLE RELIEF
`CASE NO. 21-9640
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`Case 3:21-cv-09640-JSC Document 1 Filed 12/14/21 Page 2 of 23
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`Plaintiffs Center for Food Safety and Pesticide Action Network North America
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`(Plaintiffs) on behalf of themselves and their members, allege as follows:
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`INTRODUCTION
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`1.
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`This is an action for declaratory and equitable relief challenging the failure of the
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`United States Environmental Protection Agency (EPA or the agency) to answer Plaintiffs’ 2017
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`legal rulemaking petition, which the agency is required to do by law. The 2017 petition called on
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`EPA to close a regulatory loophole that allows seeds coated with systemic pesticides (coated seeds)
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`to evade the registration and labeling requirements of the Federal Insecticide, Fungicide, and
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`Rodenticide Act (FIFRA). EPA’s failure to respond to the petition and close the loophole means
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`these pesticides are continuing to cause environmental harm unabated.
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`2.
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`Coated seeds are crop seeds that have been coated with systemic pesticides,
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`primarily neonicotinoid insecticides. Insecticides are a subcategory of pesticides. Neonicotinoids
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`and other systemic pesticides are absorbed into the plant’s circulatory system as the plant grows
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`and are predominately intended to have an external pesticidal effect on pests and predators of the
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`growing plant. Crops grown from coated seeds—including corn, soybean, and sunflower—cover
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`almost 180 million acres of U.S. farmland each year. This is the equivalent acreage of over one-
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`and one-half Californias.
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`3.
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`Coated seeds have devastating environmental impacts. First, the pesticidal coating
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`does not remain on the seed. The prophylactic pesticide coatings abrade off the seed as dust
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`during planting, or slough off the seed into the surrounding soil. Overall, only 5% of the
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`prophylactic coating is taken up by the plant,1 leaving 95% to contaminate the air, soil, vegetation,
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`and waterways. Second, beyond coating the seed itself, these systemic pesticides spread through all
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`living tissues of the growing plant, protecting the plant from pests but also spreading the
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`poisonous effects to non-target species. As a result of both these pathways, beneficial insects,
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`valuable pollinators, and birds—including threatened and endangered insects and birds protected
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`under the Endangered Species Act (ESA)—are killed or injured. The most dramatic impacts of
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`1 R. Sur & A. Stork, Uptake, Translocation and Metabolism of Imidacloprid in Plants, 56 Bulletin of
`Insectology 35-40 (2003).
`
`
`COMPLAINT FOR DECLARATORY & EQUITABLE RELIEF
`CASE NO. 21-9640
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`Case 3:21-cv-09640-JSC Document 1 Filed 12/14/21 Page 3 of 23
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`coated seeds have come in the mass die-offs of honey bees and wild native bees they have caused.
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`Excessive honey bee mortality and related wild pollinator declines are a major crisis for American
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`agriculture.
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`4.
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`Currently EPA entirely exempts coated seeds from FIFRA’s pesticide’s premarket
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`licensing, registration, assessment, and labeling regime. Instead the agency has a de facto practice
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`of applying the “Treated Article” Exemption in its regulations, 40 C.F.R. §152.25(a), despite the
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`plain language of the Treated Article Exemption foreclosing the possibility that coated seeds are
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`treated articles. Because the coated seeds are not treated primarily to protect the seed itself, but
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`rather to protect the growing plant, they cannot be properly exempted as “treated articles” under the
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`regulation. As a result, EPA has completely failed to assess the risks of these unregulated pesticides.
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`It has also never provided the public with any justification for its exemption or codified that
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`practice in its regulations.
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`5.
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`On January 6, 2016, CFS filed a case challenging EPA’s position that coated seeds
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`are exempt from the requirements of FIFRA, as stated in the agency’s 2013 Guidance for
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`Inspecting Alleged Cases of Pesticide-Related Bee Incidents. EPA moved to dismiss the case on
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`grounds that its 2013 guidance was not final agency action and thus not justiciable. The court
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`denied EPA’s motion.2 However at the summary judgment stage after review of the full
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`administrative record the court held the 2013 guidance was not final agency action and therefore
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`unreviewable.3
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`6.
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`In summary, the Court granted summary judgment to EPA because the agency had
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`never actually publicly and formally admitted its Treated Seeds policy for exempting coated seeds.
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`Instead the agency has for decades intentionally evaded any judicial review by failing to issue any
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`final agency action on the topic.
`
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`2 Anderson v. McCarthy, No. C 16-00068 WHA, 2016 WL 2770544, at *3 (N.D. Cal. May 13,
`2016).
`3 Anderson v. McCarthy, No. C 16-00068 WHA, 2016 WL 6834215, at *4 (N.D. Cal. Nov. 21,
`2016).
`
`
`COMPLAINT FOR DECLARATORY & EQUITABLE RELIEF
`CASE NO. 21-9640
`
`
`2
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`

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`Case 3:21-cv-09640-JSC Document 1 Filed 12/14/21 Page 4 of 23
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`7.
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`Accordingly, on April 26, 2017, CFS filed a formal rulemaking petition. The
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`petition was a comprehensive 43-page scientific and legal document detailing the numerous
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`environmental impacts that the broad use of coated seeds causes, outlining EPA’s authority under
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`FIFRA, and explaining why EPA’s position is incorrect. The petition was supported by 81 citations
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`and supporting documents filed concurrently. Thus the petition provided both a legal blueprint
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`and legal impetus for EPA to either (1) amend the Treated Article exemption to clarify that it does
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`not apply to seeds coated with systemic pesticides, or (2) in the alternative publish a final, formal,
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`agency interpretation in the Federal Register stating that EPA interprets the Treated Article
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`Exemption not to apply to coated seeds. CFS further requested that EPA enforce FIFRA’s
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`numerous pesticide registration and labeling requirements for each separate crop seed product that
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`is coated with a neonicotinoid or other systemic pesticidal chemical. CFS urged the agency to grant
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`the requests within 180 days of filing. Eleven organizations and beekeepers endorsed the petition,
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`including American Beekeeping Federation, American Bird Conservancy, American Honey
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`Producer’s Association, Pollinator Stewardship Council, Bret Adee, Jeff Anderson, Lucas Criswell,
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`Gail Fuller, and David Hackenberg. The petition is attached as Exhibit A.
`
`8.
`
`In December 2018, EPA opened a public notice and comment period in response
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`to the petition.4 Many commenters were concerned that EPA’s hands-off approach to coated seed
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`regulation has a devastating impact on bees and other pollinators.5 Commenters agreed that the
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`Treated Article Exemption should not apply to coated seeds because that interpretation is contrary
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`to the purposes and intent of FIFRA,6 and that EPA is “improperly using the treated article
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`exemption as a way to abdicate itself of its duties under FIFRA.”7
`
`
`4 EPA, Petition Seeking Revised Testing Requirements of Pesticides Prior to Registration; Request for
`Comment, 83 Fed. Reg. 66260 (Dec. 26, 2018).
`
` 5
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` EPA, Petition Seeking Revised Testing Requirements of Pesticides Prior to Registration, Docket No. EPA-
`HQ-OPP-2018-0805-0009, 0013, 0015, 0024, 0040, 0083 (Dec. 2018).
`
`6 Id. at EPA-HQ-OPP-2018-0805-0083.
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`7 Id. at EPA-HQ-OPP-2018-0805-0069.
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`COMPLAINT FOR DECLARATORY & EQUITABLE RELIEF
`CASE NO. 21-9640
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`Case 3:21-cv-09640-JSC Document 1 Filed 12/14/21 Page 5 of 23
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`9.
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`EPA’s failure violates the mandates of the Administrative Procedure Act (APA),
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`because EPA cannot unlawfully withhold or unreasonably delay a petition response. 5 U.S.C.
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`§ 706(1). Nearly five years after Plaintiffs first lodged the 2017 Petition, EPA has still failed to
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`respond. Irreparable environmental harm has continued unanalyzed and unabated in the interim.
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`Plaintiffs’ interests are continuing to be harmed by EPA’s inaction and lack of oversight regarding
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`coated seeds.
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`10.
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`Accordingly, this Court should hold that EPA’s failure to act in response to the
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`petition violates the APA and order EPA to respond to Plaintiffs’ 2017 Petition by a Court-ordered
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`date certain and without further unlawful delay.
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`JURISDICTION
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`11.
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`This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 (federal
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`question) and 1346 (United States as Defendant).
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`12.
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`Plaintiffs have a right to bring this action pursuant to the APA. 5 U.S.C.
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`§§ 551-559, 702-706.
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`13.
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`The relief requested is specifically authorized pursuant to 28 U.S.C. §§ 1651 (writs)
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`and §§ 2201 to 2202 (declaratory relief), as well as under the APA, 5 U.S.C. §§ 701-706. An actual
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`controversy exists between the parties within the meaning of 28 U.S.C. § 2201 (declaratory
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`judgments).
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`VENUE
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`14.
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`Venue properly lies in this Court pursuant to 28 U.S.C. § 1391(e) because one or
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`more Plaintiffs reside in this District.
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`PARTIES
`
`Plaintiffs
`
`15.
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`Plaintiffs Center for Food Safety (CFS) is a nationwide nonprofit organization with
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`offices in San Francisco, California, Portland, Oregon, and Washington, DC. Founded in 1997,
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`CFS’s mission is to empower people, support farmers, and protect the earth from the harmful
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`impacts of industrial agriculture. CFS has over a million members, including members in every
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`state across the country, including many thousands of conservationists, gardeners, farmers, and
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`
`COMPLAINT FOR DECLARATORY & EQUITABLE RELIEF
`CASE NO. 21-9640
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`4
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`beekeepers. CFS and its members are being, and will be, adversely affected by EPA’s continued
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`failure to answer CFS’s legal petition and address the risks from coated seeds.
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`16.
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`CFS combines myriad tools and strategies in pursuing its goals, including public
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`education, grassroots organizing and campaigns, media, outreach, and when necessary public
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`interest litigation and/or legal rulemaking petitions. CFS’s membership action alerts also generate
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`public education and engagement with governmental officials on issues related to addressing the
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`health and environmental impacts of industrial agriculture, and promoting a healthier, more
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`sustainable food system. Collectively, the dissemination of this material makes CFS an information
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`clearinghouse for public involvement and governmental oversight of all aspects of industrial
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`agriculture, including pesticides.
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`17.
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`Since its inception twenty-five years ago CFS has had a flagship program on
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`pesticides and pollinators, with multiple staff—science, policy, campaign, and legal. CFS’s pesticide
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`program has long advocated for rigorous, science-based safety testing and proper regulation of new
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`pesticide product uses prior to any use, in a manner that minimizes negative impacts such as the
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`increased use of pesticides and mortality to non-target species and addresses loopholes like the one
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`at issue here. This specifically has included the issue of neonicotinoids and coated seeds. CFS has
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`commented on numerous agency actions for pesticides, submitted petitions to agencies, and
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`litigated various cases to prevent environmental harm.
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`18.
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`Plaintiff Pesticide Action Network of North America (PANNA) is a Berkeley,
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`California-based, nonprofit corporation that serves as an independent regional center of Pesticide
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`Action Network International, a coalition of public interest organizations in more than ninety
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`countries. It brings this action on behalf of itself and its members, particularly small-scale farmers,
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`beekeepers, farmworkers, and indigenous members. For nearly thirty years, PANNA has worked to
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`replace the use of hazardous pesticides with healthier, ecologically sound pest management across
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`the United States and around the world. PANNA provides scientific expertise, public education
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`and access to pesticide data and analysis, and policy development and coalition support to more
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`than 100 affiliated organizations in North America. PANNA has more than 50,000 members
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`across the United States. PANNA’s members live, work, farm, and recreate in areas of the country
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`COMPLAINT FOR DECLARATORY & EQUITABLE RELIEF
`CASE NO. 21-9640
`
`5
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`where pesticides such as the neonicotinoid insecticides are applied, and in which the pesticides
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`and contaminated dust drift and transport occurs, and thus have a strong interest in ensuring that
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`EPA protect public health and the environment from this contamination. PANNA’s members are
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`highly concerned by the effects of the unregulated neonicotinoid-coated seeds on honey bees,
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`bumble bees, butterflies, beneficial invertebrates, wild pollinators, water, aquatic invertebrates,
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`food chains, ecosystem sustainability generally, and ultimately on humans via food and water
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`consumption. The lack of enforceable labeling on these pesticidal seeds, and their prophylactic
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`overuse, violate bedrock principles PANNA seeks to protect as far as only using pesticides as a last
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`resort, and then only when they have strong and clear warnings and enforceable use directions.
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`PANNA has repeatedly called on EPA to eliminate the coated seeds’ exemption from registration
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`as pesticides, including by joining the 2017 petition.
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`Defendants
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`19. Under FIFRA, Defendant EPA is charged with the pre-market assessment and
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`registration of pesticides, including the systemic pesticides used on coated seeds.
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`20. Defendant Michael Regan is sued in his official capacity as Administrator of the
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`EPA. As Administrator, Mr. Regan has ultimate responsibility for EPA’s activities and policies.
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`21. Mr. Regan and EPA are collectively referred to herein as EPA or the agency.
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`I.
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` ADMINISTRATIVE PROCEDURE ACT
`
`LEGAL AUTHORITY
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`22.
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`Pursuant to the APA, agencies must “give an interested person the right to petition
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`for the issuance, amendment, or repeal of a rule.” 5 U.S.C. § 553(e). A “rule” is “the whole or a
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`part of an agency statement of general or particular applicability and future effect designed to
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`implement, interpret, or prescribe law or policy.” Id. § 551(4).
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`23.
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`The APA requires an agency to conclude a matter presented to it, such as a legal
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`petition like the one at issue here, “within a reasonable time.” Id. § 555(b). If an agency denies a
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`petition in whole or in part, it must provide “[p]rompt notice” to the petitioner. Id. § 555(e).
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`24.
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`The APA grants a right of judicial review to “[a] person suffering legal wrong
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`because of agency action, or adversely affected or aggrieved by agency action.” Id. § 702. “Agency
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`COMPLAINT FOR DECLARATORY & EQUITABLE RELIEF
`CASE NO. 21-9640
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`6
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`Case 3:21-cv-09640-JSC Document 1 Filed 12/14/21 Page 8 of 23
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`action” is defined to include not just affirmative agency action but also the “failure to act,” id.
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`§ 551(13), such as the failure to respond to a legal petition.
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`25. Under the APA, courts “shall compel agency action unlawfully withheld or
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`unreasonably delayed,” id. § 706(1), and “hold unlawful and set aside agency action, findings, and
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`conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in
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`accordance with law,” id. § 706(2)(A).
`II. FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT
`26.
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`FIFRA controls the manufacture, sale, and use of a broad range of chemicals and
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`biological pest controls. 7 U.S.C. §§ 136–136y. As Congress explained, FIFRA’s primary purpose
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`is to protect human health and the environment. Pub. L. No. 92-516, 86 Stat. 973 (1972).
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`27.
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`Pursuant to FIFRA, every pesticide must undergo registration with EPA before
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`distribution or sale. 7 U.S.C. § 136a(a). A “pesticide” is defined very broadly, to mean “any
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`substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any
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`pest,” id. § 136(u)(1); the term “pest” includes insects, bacteria, and other microorganisms, id.
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`§ 136(t).
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`28.
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`EPA may not register a pesticide unless it first determines and supports with
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`substantial evidence that the pesticide “will perform its intended function without unreasonable
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`adverse effects on the environment; and when used in accordance with widespread and commonly
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`recognized practice it will not generally cause unreasonable adverse effects on the environment.” 7
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`U.S.C. § 36a(c)(5)(C), (D).
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`29.
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`A pesticide is considered unregistered under FIFRA if its claims differ substantially
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`from the claims made for the registered pesticide, or if its composition differs from the
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`composition of the registered pesticide. 7 U.S.C. § 136j(a)(1)(B), (C). A new registration is
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`required for a pesticide containing an active ingredient that has not been previously registered. 40
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`C.F.R. § 152.403. A new registration is also required prior to a new use of an existing registered
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`pesticide. Id.
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`30. With regard to exemptions from FIFRA, the “Administrator may exempt from the
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`requirements of this subchapter by regulation any pesticide which the Administrator determines
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`COMPLAINT FOR DECLARATORY & EQUITABLE RELIEF
`CASE NO. 21-9640
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`Case 3:21-cv-09640-JSC Document 1 Filed 12/14/21 Page 9 of 23
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`either (1) to be adequately regulated by another Federal agency, or (2) to be of a character which is
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`unnecessary to be subject to this subchapter in order to carry out the purposes of this subchapter.”
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`7 U.S.C. § 136w(b).
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`31.
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`EPA’s implementing regulation for such exemptions provides that treated articles
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`or substances are not regulated. 40 C.F.R. § 152.25. A treated article or substance is one which is
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`“treated with, or containing, a pesticide to protect the article or substance itself.” Id. § 152.25(a).
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`EPA regulations exemplify this as “paint treated with a pesticide to protect the paint coating, or
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`wood products treated to protect the wood against insect or fungus infestation.” Id.
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`Neonicotinoid Pesticides
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`STATEMENT OF FACTS
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`32.
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`Neonicotinoids are a class of insecticide chemically similar to nicotine, which
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`disrupt the central nervous system of insects resulting in paralysis and death. Lower-level exposure
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`has sublethal effects on insects, which include reductions in growth and reproduction, weakened
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`immunity to parasites and viral diseases, and impaired learning and foraging behavior. These
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`pesticides are systemic: unlike contact pesticides, which remain on the surface of the treated plant
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`or seed, systemic pesticides are taken up by the growing seedling and transported to all its tissues
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`(leaves, flowers, roots and stems, and pollen and nectar).
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`33.
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`Neonicotinoids are highly soluble in water and quite persistent in the environment.
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`Thus, it is not surprising to find neonicotinoids transported away from the initial application area
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`to pollute surface water and groundwater. For instance, a survey conducted by the U.S. Geological
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`Survey from 2012 to 2014 found one or more neonicotinoids present in 63% of the streams that
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`were tested in 24 states and Puerto Rico.8
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`34.
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`Neonicotinoids are the most widely used class of insecticides in the world. Studies
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`show they are extremely harmful to pollinators, and strongly implicated in bee declines worldwide.
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`35.
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`An authoritative 2014 global review of over 800 published studies conducted under
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`8 Michelle Hladik & Dana Kolpin, First National-scale Reconnaissance of Neonicotinoid Insecticides in
`Streams Across the USA, 13 Env’t Chemistry 12-20 (2016),
`https://pubs.er.usgs.gov/publication/70156299.
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`COMPLAINT FOR DECLARATORY & EQUITABLE RELIEF
`CASE NO. 21-9640
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`Case 3:21-cv-09640-JSC Document 1 Filed 12/14/21 Page 10 of 23
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`the auspices of the International Union for the Conservation of Nature (IUCN) determined that
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`neonicotinoids are dangerously overused and should be restricted. A 2021 update to this review
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`finds still more evidence of harms, linking neonicotinoid exposure to declines in wild bee and
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`butterfly populations, warning that neonicotinoids’ extreme toxicity to aquatic invertebrates
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`“eliminates entire populations from the affected areas,” and thereby threatens entire ecosystems.9
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`36.
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`In 2018, the European Union (EU) banned the primary neonicotinoids from all
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`outdoor use. The United Nations states that neonicotinoids are so hazardous that their use should
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`be severely restricted. Several states in the United States have also restricted neonicotinoid usage to
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`protect bees and other pollinators. At the federal level, EPA has acknowledged the dangers of
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`neonicotinoids and regulates them under FIFRA.
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`Neonicotinoid-Coated Seeds
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`37. While neonicotinoids themselves are regulated by EPA under FIFRA, EPA does
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`not currently regulate neonicotinoid-coated seeds. However systemic neonicotinoid-coated seeds
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`plainly fit within FIFRA’s broad definition of “pesticide”: they are a “mixture of substances that
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`are intended to prevent, destroy, repel or mitigate a pest,” and thus they should require pesticide
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`registration approval prior to any sale or use. 7 U.S.C. § 136(u)(1). Instead, EPA has a de facto
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`policy of treating them as exempt from the requirements of FIFRA and not requiring any
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`registration.
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`38.
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`Coated seeds are coated with liquid formulations of neonicotinoid chemicals,
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`essentially turning the seeds into pesticide delivery devices. After the seeds germinate, the chemical
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`coating delivers the active ingredient of the pesticide into the tissues of plants, via the growing
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`plants’ circulatory system. The tissues are typically hundreds or even thousands of times larger in
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`dimension and mass than the seed itself, and are fundamentally different from a biological
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`standpoint. The pesticide coating protects the plant from some insects; the coatings do not, in the
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`vast majority of their uses, protect the seed itself against any disease or other risk to the seed.
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`9 Dave Goulson et al., An Update of the Worldwide Integrated Assessment (WIA) on System Insecticides
`Part 2: Impacts on Organisms and Ecosystems, 28 Env’t Sci. Pollution & Rsch. 11749-97 (2021).
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`COMPLAINT FOR DECLARATORY & EQUITABLE RELIEF
`CASE NO. 21-9640
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`Case 3:21-cv-09640-JSC Document 1 Filed 12/14/21 Page 11 of 23
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`39.
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`Reviewing the many pesticide product labels that EPA has registered since 2010
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`reveals that in the vast majority of those labels the neonicotinoid ingredients are intended to
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`protect the growing crop plants. Few of those labels explicitly claim protection of the planted seed
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`itself by the neonicotinoid ingredient.
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`40.
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`Crop seeds coated with neonicotinoid throughout the United States, include but
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`are not limited to:
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`Canola
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`Field and sweet corn
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`Cotton
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`Cucurbits
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`Legume vegetables
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`Potatoes
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`Soybean
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`Sunflowers
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`Wheat
`41.
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`These seeds are used on nearly 180 million acres across the United States,
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`representing the vast majority of systemic insecticide use and covering close to one-fifteenth of the
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`entire land surface of the lower forty-eight states.
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`42. Despite being used over such a large land area, neonicotinoid seed treatments
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`provide little or no benefit. They are largely ineffective on corn’s worst pest, corn rootworm,10 and
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`an EPA study showed that any benefits of neonicotinoid seed treatments to soybean farmers were
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`“negligible.”11 Despite this, seed companies often give farmers little or no choice of uncoated
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`seeds, particularly uncoated corn seed.
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`43.
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`Planting coated seeds results in exposure of non-target organisms even in those
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`frequent instances when pests are not present at damaging levels. Such prophylactic or “insurance-
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`10 Marlin Rice, Seed-Treatment Insecticides: What Can We Expect in Terms of Broad-Spectrum Control of
`Soil Insects? Proc. of Ind. Crop Advisory Conf. (2004).
`11 U.S. Environmental Protection Agency, Benefits of Neonicotinoid Seed Treatments to Soybean
`Production (Oct. 15, 2014).
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`COMPLAINT FOR DECLARATORY & EQUITABLE RELIEF
`CASE NO. 21-9640
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`Case 3:21-cv-09640-JSC Document 1 Filed 12/14/21 Page 12 of 23
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`based” use of pesticides is contrary to Integrated Pest Management (IPM), which strives to
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`eliminate senseless pesticide applications.12
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`Environmental Effects
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`44.
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`Neonicotinoids associated with coated seeds are found widely throughout the
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`environment, and the agricultural landscape is up to 48 times more toxic to insects than it was 25
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`years ago.13
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`45.
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`Since neonicotinoids are systemic, they are found in the crops grown from treated
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`seeds including the leaves, pollen, and nectar. Neonicotinoids disrupt the central nervous system
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`of insects, and do not discriminate between target and non-target insects, so affect insects and
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`pollinators such as bees that consume the nectar or pollen of the treated crop.
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`46. On average only 5% of the neonicotinoid coating is absorbed by the crop, leaving
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`roughly 95% of the active ingredient to diffuse into the surrounding soil and soil water, and
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`eventually into waterways. In addition, neonicotinoid coatings are abraded off into the talc or
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`other lubricant added to seed boxes to prevent coated seeds from sticking together, and the
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`neonicotinoid-rich lubricant dust lost during planting travels long distances on the wind during
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`planting. In short, the bulk of the coating does not remain in or on the treated articles: the seeds.
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`The result is widespread contamination of the air, soil, marginal vegetation, waters, neighboring
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`farms, and beehives. Pesticide contamination thus results on vast areas extending far beyond the
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`planted fields, affecting non-target organisms.
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`47.
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`Neonicotinoids persist in the environment, creating the potential for increasing
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`concentrations in the soil over time with repeated use, exacerbating risks to non-target organisms.
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`48.
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`The effects on wildlife range from direct harm to both managed and wild bees and
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`other beneficial terrestrial insects, to contaminated runoff decimating aquatic invertebrates, to
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`12 Jacob Pecenka et al., IPM Reduces Insecticide Applications By 95% While Maintaining Or Enhancing
`Crop Yields Through Wild Pollinator Conservation. 118 Proc. Nat’l Acad. Sci. USA (2021).
`13 Kendra Klein & Anna Lappé, America's agriculture is 48 times more toxic than 25 years ago. Blame
`neonics, The Guardian (Aug. 2019).
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`COMPLAINT FOR DECLARATORY & EQUITABLE RELIEF
`CASE NO. 21-9640
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`Case 3:21-cv-09640-JSC Document 1 Filed 12/14/21 Page 13 of 23
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`both acute and chronic effects on birds that ingest the coated seeds. Traces of residual
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`neonicotinoids can have a mixture of lethal and sublethal effects on a wide range of taxa.
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`49. Many beekeepers have observed toxic dust clouds billowing from seed planting
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`machines, spreading neonicotinoids into integral bee habitat. Honey bee kill incidents caused by
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`coated seeds have numbered in the hundreds and the true number is likely far higher. These
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`incidents have killed hundreds of millions of individual bees due to acute dust-off kills and
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`chronic damage to bee hives. Sublethal doses can result in honey bee colony damage through
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`chronic effects, which compromise the behavior and immunity of bees, and the health of entire
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`colonies, contributing to substantial losses under the additional stress of pathogens and parasites.
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`50. Harm to noncommercial bees and other pollinators is equally deadly. Species such
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`as bumblebees, ground-nesting mining bees, alkali bees, squash bees, and long-horned sunflower
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`bees are devastated by repeated, persistent use of coated seeds. Adverse impacts to other species of
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`native bees that are not ground nesters has also been identified through exposure routes such as
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`contamination of nesting materials. The harm to pollinators harms U.S. agriculture, which relies
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`on wild pollinators to pollinate food crops.
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`51.
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`Because neonicotinoids are water soluble, increasing contamination of ditches,
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`streams, groundwater, lakes, rivers, and marine areas is being documented, with coatings applied
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`to crop seeds a primary source of the contamination. The three major neonicotinoids were found
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`to be prevalent throughout the year in sampled tributaries to the Great Lakes, the largest
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`freshwater ecosystem in the world. EPA has found ongoing chronic effects for many aquatic
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`invertebrates and some groups likely to suffer acute effects. Aquatic invertebrates are core
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`contributors to nutrient cycling, water quality, and aquatic food webs that support fish and
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`wildlife, so lethal and sublethal effects to these organisms can have far-reaching consequences.
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`COMPLAINT FOR DECLARATORY & EQUITABLE RELIEF
`CASE NO. 21-9640
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`Case 3:21-cv-09640-JSC Document 1 Filed 12/14/21 Page 14 of 23
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`52.
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`Slugs that consume neonicotinoid-coated soybean seeds and seedlings take the
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`insecticide into their tissues; while they are unaffected, beneficial predatory ground beetles that
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`prey upon them are killed, resulting in higher slug populations that lower soybean yield.14
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`53.
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`Bird species are being exposed to and harmed by coated seeds. Small to medium-
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`sized birds are at risk of death from consuming just one to four small seeds of crops like sorghum
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`or wheat, a credible risk given shallow planting and many birds’ predilection for energy-rich seeds.
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`Birds could also be harmed by eating neonicotinoid-intoxicated organisms li