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Can the Courts Speak for the Bees?

Written by Mike Angstadt, 2015-2016 Sustainability Leadership Fellow and PhD candidate, Department of Political Science, CSU.
While federal courts often seem insulated from the outside world and cloaked in strict rules, some tiny outsiders are beginning to enter the rarefied buildings. In recent years, honeybees have found their way into federal courts and captured the attention of federal judges. Rather than appearing as actual swarms of bees, they have arrived through a flurry of papers and arguments. However, these honeybee-related lawsuits are fascinating; in particular, a 2015 case illustrates the important role that courts can play in setting environmental policy.

Currently, species are being lost at a rate estimated to exceed the historical extinction rate by 1,000-10,000 times. Many threatened and endangered species perform functions that are valuable to our modern society, and among them, pollinators are paramount. Wild pollinators, as well as their domesticated counterparts (including honeybees), support agricultural production by pollinating crops that farmers and industries depend upon. In particular, honeybees facilitate pollination and crop production for many valuable crops; some, including almonds, depend entirely upon honeybees. Accordingly, economists estimate that honeybees contribute as much as $14 billion dollars per year of value to US crop production.

So, what's all the buzz about? Well, habitat loss and other factors have caused populations of native pollinators to decline, and have heightened the importance of honeybees in crop pollination. However, honeybees are also struggling. In recent winters, as many as one-third of honeybee colonies have collapsed. A combination of multiple factors, including stress, parasites, and pesticides is likely responsible for these collapses, and so a complex approach will be needed to maintain honeybee populations. As one step in this effort, conservation groups and environmental lawyers have begun swarming the courts.

Of the many tools available to conservation groups, courts may be among the least familiar to most of us. However, even though court cases are often highly technical and filled with legalese (who says "heretofore," anyway?), their power as conservation tools can't be overstated. For decades, environmental lawyers have used courts to advance their interests and address pressing conservation issues. To provide just a few examples, environmental lawsuits have: blocked construction of a power plant in a scenic stretch of New York's Hudson River, temporarily halted construction of an entire dam to protect an endangered fish species, and required the Environmental Protection Agency to regulate carbon dioxide and other greenhouse gases as pollutants. All those "heretofores" have some heft! Recognizing the power of the courts and the plight of the bees, groups representing the honeybee industry filed a lawsuit in 2013 that sought to protect honeybees from another pesticide that they viewed as harmful.

In Pollinator Stewardship Council v. EPA, the groups drew upon a law known as FIFRA (the Federal Insecticide, Fungicide, and Rodenticide Act), which requires new pesticides to be approved and registered by the EPA before they can be sold, as a way to evaluate their safety. The groups argued that the EPA had registered a new pesticide, known as sulfoxaflor, even though they felt that insufficient data had demonstrated its safety for bees. After some very technical analysis (here's the full opinion), the 9th Circuit Court of Appeals in San Francisco sided with the pollinator groups. Last month, the court ordered the EPA to rescind its registration of sulfoxaflor until additional information can be gathered regarding its safety.

In one sense, the case illustrates just how specific the legal questions are that federal courts often consider. At the same time, it shows how these very specific considerations can have huge impacts for environmental issues and environmental health. By considering whether specific registration procedures were followed for a single pesticide, the court blocked that pesticide from entering the market, and also brought considerable media attention to the issue of honeybee decline. Finally, it seems that the judges hearing the case were aware of these broader implications. For instance, when justifying its decision, the court emphasized "the precariousness of bee populations." It also emphasized the need to consider how pesticides affect the health of the overall hive, not just individual bees.

Currently, we are facing numerous, complicated environmental challenges in addition to pollinator decline. To address these, we will need informed, thoughtful participation from all corners of government, science, and industry. In demonstrating its ability to digest the broad issue of honeybee decline and apply it to their specific legal question, the 9th Circuit highlights the potential for courts to make important contributions to 21st-century conservation. For those of us who research courts and environmental law, this prospect helps to take some of the sting out of reading all that legalese!

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