Environmental group Friends of the Earth (FoE) has failed in its UK High Court attempt to stop the emergency use of banned neonicotinoid pesticides, implicated in the decline of bee populations.
The use of three neonicotinoid pesticides is illegal under European Union law, though the law is due to be reviewed. The UK Department for Environment (DEFRA) authorised use of two of the pesticides for 120 days on about 5% of England’s oil seed rape crop after the National Farmers Union had made an application for their emergency use over the autumn.
The Hon Mrs Justice Patterson has now rejected an FoE challenge to the authorisation for the pesticides Modesto and Cruiser OSR, which contain neonicotinoids. In seeking a judicial review FoE claimed it had arguable cases that:
i) the UK Government did not give proper consideration to whether the risk to oilseed rape on the farms constituted an emergency;
ii) that no consideration was given to whether the risk could be contained by other means;
iii) that there was no compliance with the requirement that the authorisation should be limited and controlled.
Patterson ruled, however, that each ground was not arguable. On the issue of risk to the crop from pests she said:
“I can see no argument that the defendant [Elizabeth Truss, Secretary of State for Environment, Food and Rural Affairs] misdirected herself or misunderstood the meaning of Article 53 [of the EU regulations on approval of active substances]. She was entitled to give appropriate deference to the expert and scientific evidence before her and make her own judgment as to whether ‘special circumstances’ existed. The ground is not arguable.”
Article 28 of the directive says: “A plant protection product shall not be placed on the market or used unless it has been authorised in the Member State concerned in accordance with this Regulation.” Article 53 says: “By way of derogation from Article 28, in special circumstances a Member State may authorise, for a period not exceeding 120 days, the placing on the market of plant protection products, for limited and controlled use, where such a measure appears necessary because of a danger which cannot be contained by any other reasonable means.”
A set of initial applications in April by the NFU to use pesticides to deal with cabbage stem flea beetle and the peach potato aphid had been rejected as not being “limited and controlled as required by the regulations” after DEFRA’s chief scientific adviser Professor Ian Boyd said data and presentation did not have appropriate levels of robustness and stewardship. But he also said:
“There are likely to be specific instances where there is a real need for application of crops with neonicotinoids. I have seen for myself what I believe are the effects of pests on winter OSR [oilseed rape] crops in Suffolk. Growers that can demonstrate that they have adopted low risk behaviours (e.g. in terms of choice of variety, time of drilling etc) but have still encountered demonstrable (i.e. evidence-based) severe pest problems are likely to be in greatest need for chemicals issued under Emergency Authorisation.”
In June a targeted application for Suffolk was accepted after the NFU said the scale and the stewardship involved met the “limited and controlled” requirement. Boyd agreed, adding: “Granting the application will also increase our knowledge of the effects of neonicotinoids because we will have one treated region (Suffolk) to compare with other untreated regions.” The UK Expert Committee on Pesticides also backed the application.
FoE argued that Boyd had been correct the first time and nothing had changed in the new application. It said the Secretary of State had failed to consider the correct legal test and whether there were exceptional circumstances to justify authorisation. The emergency procedure was simply being used to circumvent the EU ban. There was no evidence in the application, in particular about non-chemical alternatives to the pesticides such as delayed drilling of the seed.
FoE questioned whether the use of pesticides would be “controlled” since the authorisation left the NFU to decide what controls would be in place and how they would be applied. Patterson rejected the FoE arguments saying:
“The decision maker came to her decision taking into account considerable technical and scientific advice on the situation. Professor Boyd had carried out a personal visit to Suffolk and saw for himself what he believed to be the effect of the pests on the winter oilseed rape crops. His opinion was taken into account in the assessment by the ECP [Expert Committee]. The briefing Note records that he was content to accept the revised application.”
There was no legislative requirement to have exhausted “cultural methods” before concluding there are no other reasonable alternatives to using the pesticides. Boyd in his July opinion was quite clear that the revised applications were likely to meet the standard required by the “limited and controlled” test.
Patterson accepted that some damage from pests was to be expected, but the extent of damage and whether it was sufficient to constitute a “special circumstance” was a matter of judgment for the decision maker.
Friends of the Earth has said in a statement that it is considering an appeal. “Our legal challenge has revealed fundamental flaws with the decision-making process for these emergency authorisations, which was shrouded in secrecy until the government was forced to provide crucial papers to us.”
This year’s use of the pesticides cannot be prevented because of delays in getting vital information from the Government to bring the case.
“We can only hope that by next year, when the NFU and chemical companies say they intend making more applications to use bee-harming pesticides, the Government will have radically revised its process to ensure complete transparency, and will have read the latest scientific papers. We are certainly not ruling out further legal challenges in future.”
The full case can be read here: R (Friends of the Earth) v Secretary of State for the Environment (thanks to Bailii)
Note: Many of the Environment Secretary’s duties as an authorising authority are delegated to the Health and Safety Executive.