September 7, 2011
Leaked EPA Memo links Pesticide Company To Mass Killing Of Honeybees, Cites EPA's Own Failures

A leaked EPA memo is being cited by scientists as smoking gun evidence of likely cause of the massive die-off of honeybees. The culprits, these researchers claim, are Bayer CropScience and the Environmental Protection Agency (EPA).

The memo details how Bayer performed facially inadequate testing on the pesticide clothianidin and then EPA accepted the results to release the pesticide without adequate proof that it would not harm the bee population. The EPA gave conditional approval in 2003 and let Bayer sell the product.

The EPA memo dated November 2, 2010 says that the EPA accepted the flawed research and only told the company to complete further safety testing by a certain deadline. The company did not complete the research for years and instead fought to get extensions on its conditional permit. The final testing was reportedly flawed — performed in another country with bees that were located on a small patch of treated crops surrounded by thousands of acres on untreated crops. The EPA quickly embraced the defective study and gave full registration to clothianidin in 2007 during the Bush Administration. Yet, even in the Obama Administration in November, 2010, the EPA did not act when the company filed for another extension.

On a political level, this is a fascinating story since many Republican candidates have been calling for the elimination or reduction of the EPA to help the economy. The loss of the honeybees represents a catastrophic blow for agriculture in the United States. Even if you are a candidate with little concern for public health or the environment, this is an example of how pollution or harmful chemicals hurt the economy.

On a legal level, the story would create an interesting question if true. The company stands accused of doing rigged and delayed field testing in order to get a defective product to market. The result is claimed to be the devastation of honeybees that are vital to farms and other businesses. Can they now sue? The problem will be proving causation in such a massive tort case. Of course, a trial would produce greater scrutiny than was the case at the EPA.

I am also concerned that this memo had to be leaked. Once again, neither the agency nor Congress informed the nation of this evidence for years as the world has searched for a cause of the loss. Even if this is not found to the cause or only cause, there remains questions of why this company was able to introduce such a chemical into the environment with so little scrutiny. The reliance on industry testing has long been controversial and the lack of serious scrutiny during both the Bush and Obama Administrations shows how industry continues to exercise a disturbing degree of control over the data used to evaluate their products.

the difficulty of proving such an attenuated Proximate Cause in a Tort case is precisely why Property Rights alone are insufficient to protect the environment; hence requiring regulatory oversight.  The farmers are also going to have an extremely difficult time demonstrating that any losses they’ve experienced were caused-in-fact by the honeybee extermination.  The connection is so difficult to show in court that demonstrating an injury is virtually impossible.  

And the farmers have the best case among anybody.  Who else has standing to sue when animals and insects are killed?  The families of the honeybees?

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