The Supreme Court has denied a petition by three producer groups and FMC for a review of a lower court ruling which upheld the Environmental Protection Agency’s revocation of the domestic tolerances for FMC’s carbofuran insecticide.
The High Court’s refusal to consider the case cleared the way for EPA to continue its cancelation of most of the tolerances for the pesticide, also known as Furadan, which, at one time, was a staple of insect control strategies in corn, rice and potatoes.
The case, the National Corn Growers Association vs. EPA, centered around whether the agency should have held an evidentiary hearing under the Federal, Food, Drug and Cosmetic Act before taking the action. FMC, the primary registrant of carbofuran, brought the case to try to prevent EPA from canceling the remaining uses of the product.
“We are greatly disappointed by the U.S. Supreme Court’s decision not to review the lower court’s ruling on EPA’s actions, which sets a bad precedent for U.S. agriculture,” said Dr. Michael Morelli, director of global regulatory affairs, FMC Agricultural Products Group.
The U.S. Court of Appeals in Washington earlier reinstated import tolerances for carbofuran for rice, bananas, coffee and sugar cane, noting in its written opinion that EPA had acknowledged that “exposure to carbofuran in imported foods alone is safe.” In light of the fact, the court ruled that EPA’s decision to revoke the import tolerances for these foods was “arbitrary and capricious.”
Morelli said FMC believes carbofuran is a safe product after 40 years of productive use without a single incident of dietary or drinking water injury. The National Corn Growers Association, National Sunflower Association, National Potato Council and FMC jointly petitioned the U.S. Supreme Court.
“It’s unfortunate that the Supreme Court did not recognize the inconsistencies within the lower court ruling, which effectively deems the chemical safe for imported food but not for crops grown in the United States,” said Bart Schott, president of the National Corn Growers Association.
“We hope the EPA’s handling of carbofuran is not an indication of how the agency intends to proceed with future product cancellations.”
The grower associations, USDA and all 50 Secretaries of State Departments of Agriculture went on record supporting the continued, but very limited use of carbofuran that FMC had proposed to EPA.
Schott said NCGA is specifically concerned with the EPA’s decision to revoke the food tolerance for carbofuran before cancelling the product registration, which allows the agency to avoid a lengthy public hearing process. This creates a risk for growers that crops legally treated for protection against pests may not be sold after harvest.
“While the outcome of this case is unfortunate, NCGA will continue to fight for the best available science in regulatory decisions,” Schott said. “Our goal is to ensure our farmers have the necessary tools to continue to produce the safety and most abundant food supply in the world.”
A spokesman for Defenders of Wildlife applauded the Supreme Court decision, saying EPA has shown that dietary exposure to carbofuran is unsafe for humans.
“The Supreme Court’s EPA decision confirmed what we’ve been saying for years: carbofuran is a deadly poison that has absolutely no place in our food or the environment,” said Jason Rhylander, senior legal counsel for the organization.
“The Court’s action means that, in this case, the health and safety of the American people and our nation’s wildlife have trumped the profits of powerful corporations. EPA made the right decision in 2009 to revoke all food tolerances for carbofuran and should take further action to cancel the use of carbofuran altogether.”
Members of the grower groups said a favorable decision by the Supreme Court could have made it easier for other registrants to hold hearings under the Federal Food, Drug & Cosmetic Act, where they can challenge the science EPA relies on when regulating pesticides.