Jenna Kennett

March 12, 2010

U.S. District Court Judge Denise Cote banned the sale of spirotetramat, a pesticide produced by Bayer Cropscience, a North Carolina subsidiary of Bayer AG. Spirotetramat, also known by the trade names Movento and Ultor, is a pesticide that was approved by the Environmental Protection Agency (EPA) in 2008 for use on hundreds of crops. Environmental groups and commercial beekeepers claim the pesticide is toxic and is killing off the nation's honeybee population. According to Bayer Cropscience, however, spirotetramat has been rigorously tested, is perfectly safe and does no harm to honeybees.

Judge Cote's decision does not definitively address the inconclusive impact spirotetramat may have on honeybees. Alternatively, Judge Cote reasoned that the EPA violated the Federal Insecticide, Fungicide, and Rodenticide Act and the Administrative Procedure Act when approving the pesticide. According to Judge Cote, the EPA failed to provide notice and comment and failed to publish Bayer's application and the agency's approval in the Federal Register. She characterized EPA's failures as a "serious deficiency" and added that the EPA "offered no explanation whatsoever for these shortcomings."

On January 20, 2010, Bayer filed a notice of appeal and two days later, filed a motion for a stay pending the appeal. Judge Cote noted that there are four factors that must be considered by a court when issuing a stay pending an appeal. First, "whether the stay applicant has made a strong showing that he is likely to succeed on the merits"; second, "whether the applicant will be irreparably injured absent a stay"; third, "whether issuance of the stay will substantially injure the other parties interested in the proceeding; and fourth, "where the public interest lies." After considering these factors, Judge Cote ultimately held that Bayer was unable to prove that circumstances justifying a stay existed.

Sources:

Alan Bjerga, Bayer 'Disappointed' in Ruling on Chemical That May Harm Bees, Bloomberg, Dec. 29, 2009. http://www.bloomberg.com/apps/news?pid=20601100&sid=awNvfcIKf4AY.

Bayer Kills Bees!, Neo-Nicotinoid Pesticides Threaten Honeybees and Other Insects Worldwide, http://www.bayer-kills-bees.com/ (last visited Mar. 10, 2010).

Ethan A. Huff, Bayer Pesticide Banned Over Threat to Honeybees, NaturalNews.com, Feb. 22, 2010, http://www.naturalnews.com/028218_pesticides_honeybees.html.

Nat'l Res. Def. Council v. U.S. Envtl. Prot. Agency, No. 09-4317, 2009 WL 5033959 (S.D.N.Y. Dec. 23, 2009).

Nat'l Res. Def. Council v. U.S. Envtl. Prot. Agency, No. 09-4317, 2010 WL 431885 (S.D.N.Y. Feb. 8, 2010).

Rick Willis, Procedural Issues Lead to Ban of Bayer Pesticide, Pittsburgh Trib.-Rev., Jan. 1, 2010, http://www.pittsburghlive.com/x/pittsburghtrib/news/s_660336.html.