Ninth Circuit Invalidates Conditional Nanomaterial Pesticide Registration

Crop Duster Plane

In a ruling that could slow EPA’s approval of nanomaterial-based pesticides, the Ninth Circuit on May 30 invalidated EPA’s conditional approval of NSPW-L30SS, formerly known as Nanosilva. Natural Resources Defense Council (NRDC) v. EPA (9th Cir., May 30, 2017). The Court found that EPA’s determination that use of nanosilver-based pesticides would result in lower overall silver emissions into the environment, and therefore was in the public interest, was faulty because it was based on two assumptions that lacked support—that current users of pesticides containing conventional silver would switch to the new pesticide, and that the new pesticide would not be used in new products. The Ninth Circuit noted that a 2009 EPA Scientific Advisory Panel had found that the hazard profile of nanosilver “may differ from other forms of silver.” NRDC, one of the plaintiffs in the case, hailed the decision as closing a loophole that has allowed premature approval into the market of potentially hazardous pesticides: in a blog post, NRDC stated that the decision is a “loud warning [for EPA] to stop its abuse of this registration loophole, and end its current practice of ushering in over half the pesticides onto the market as conditional registrations.” Under the ruling, EPA must now support a conditional registration of a pesticide with substantial evidence showing a pesticide’s use is in the public interest.

For more information on pesticide registration issues under the Federal Insecticide, Fungicide and Rodenticide Act, contact Steve O’Day.

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