On the uses and misuses of the precautionary principle: Towards a EU ban on neonicotinoid insecticides

May 2, 2013 12:00 AM
Although the European Commission proposal to temporarily suspend the use of the world's most widely used insecticides failed to win the support of a majority of EU Member States, a decision banning these pesticides seems imminent.


 
In Spring 2012, following the publication of a scientific opinion by EFSA linking the use of certain neonicotinoid insecticides (neonics for short) and the serious declines in bee numbers, the EU Commission issued a proposal for restricting their use. In particular, it proposed a ban on the use and sale of the active substances clothianidin, thiamethoxam or imidacloprid (i.e., the three neonicotinoid insecticides marketed in the EU) on crops that are attractive to honey bees, except for uses in greenhouses and for winter cereals.
 
However, on 15 March 2013, the representatives of the 27 EU Member States gathered in the Standing Committee on the Food Chain and Animal Health (SCFCAH) failed to reach the necessary majority (in favour or against) in a vote on this proposal. Thirteen EU Member States (i.e., Belgium, Cyprus, Denmark, France, Italy, Latvia, Luxembourg, Malta, the Netherlands, Poland, Slovenia, Spain, and Sweden) supported the proposal in the SCFCAH, nine EU Member States (i.e., Austria, the Czech Republic, Hungary, Greece, Ireland, Lithuania, Portugal, Romania and Slovakia) voted against it, and five EU Member States (i.e., Bulgaria, Estonia, Finland, Germany and the UK) abstained.
 
A similar outcome was reached last Monday, April 29 when the Commission presented the same proposal to the Appeal Committee. This time two more Member States supported the proposal (eight voted against and four abstained). Yet this was not enough to ensure its adoption. Under the rules governing the EU implementing measures, it is now for the Commission to decide whether to adopt or withdraw its proposal.
 
In the aftermath of the vote, the competent Commissioner, Tony Borg, declared that it will go ahead with the proposal, and in full exercise  of his prerogatives, he will turn it into law during the next weeks. When unveiling his intentions the Commisioner stated : “I pledge to do my utmost to ensure that our bees, which are so vital to our ecosystem and contribute over €22 billion annually to European agriculture, are protected”.
 
I love his commitment to save bees, the ecosystem, the European agriculture and – why not? – the world (!). But the merits of this impending decision call for a slightly more sophisticated, yet less likable and emotional, analysis. One may reasonably expect that this will be eventually be performed by the Court of Justice of the European Union within the framework of judicial review of the final decision. In the meantime, we propose to distance ourselves from the initial comments, judgments and intuitions surrounding this controversial announcement (be aware: the ban has not been adopted yet and the lobbying campaign is in full swing). We focus instead on a broader and - we believe - more essential question:
 
Is the EU Commission’s stance vis-à-vis neonics an acceptable risk regulation decision for society?
 
To address these difficult questions, we briefly examine both the science and the law of neonics, but before doing so we propose to lead you through the process followed by the Commission in restricting the use of these pesticides.
 
The Science
 
The scientific community appears divided over the proposed ban. Professor Lin Field, head of biological chemistry and crop protection at Rothamsted Research, fears the decision was based on “political lobbying” and could lead governments to overlook other factors, while University of Cambridge researcher Dr Lynn Dicks says the vote was “a victory for the precautionary principle, which is supposed to underlie environmental regulation.”
 
To understand where the science of neonics stands we need to make a step back. Reports about bee colony losses and damage have increased in recent years all over the world. Besides the growing evidence of a decline in European wild pollinator species, populations of honeybees and other pollinators have also declined worldwide. Hence the phenomenon generally referred to as  pollinator crisis”, which is epitomised by the worst-looking scenario of "Colony Collapse Disorder" (CCD), the sudden and rapid loss from a colony of its adult worker bee population. 
 
 
Given the importance of honeybees (and wild species) for pollination and human nutrition, this is an issue of great concern. Although bee declines can be attributed to multifarious causes, pesticide use has progressively come more and more under the scrutiny for having a significant impact on bee mortality.
 
Particularly neonicotinoids, their name literally means “new nicotine-like insecticides”, have been more frequently associated with the pollinator declines. These pesticides, are a widely used group of systemic insecticides chemically related to nicotine and with a common mode of action that affects the central nervous system of insects, causing paralysis and death. They are typically present not only in the leaves and seeds, which pest insects might ingest, but also in the pollen and nectar gathered by bees in the process of pollination.
 
While initially neonicotinoids were considered to have low-toxicity to many beneficial insects, including bees, this claim has recently come into question. Recent research suggests a potential toxicity to bees and other beneficial insects through low level contamination of nectar and pollen with neonicotinoid insecticides used in agriculture. Although these low level exposures do not normally kill bees directly, they may impact some bees’ ability to forage for nectar, learn and remember where flowers are located, and possibly impair their ability to find their way home to the nest or hive.
 
In July 2010, a Dutch toxicologist examined the toxicity of neonicotinoid pesticides in relation to exposure time. He published a book in regards to his research called "A Disaster in the Making". The book explores the impact of neonicotinoids on the immune system of bees. Morevoer, the 2009 documentary Vanishing of the Bees suggests that a link between neonicotinoid pesticides and Colony Collapse Disorder exists.[41] It is against this backdrop that a ban has been supported by petitions signed by millions of people.
 
Amid growing public concern, a complaint to the EU Ombudsman and in the aftermath of the publication of new new scientific information concerning sub-lethal effects of neonicotinoids on bees in early 2012, the EU Commission, in accordance with Article 21(2) of Regulation (EC) No. 1107/2009, asked the European Food Safety Authority (hereinafter, EFSA) for scientific and technical assistance to review the risk assessment of neonicotinoids as regards their impact on bees. On 16 January 2013, EFSA presented its conclusions on the risk assessment for bees in relation to the three neonics, in which it identified for certain crops high acute risks for bees from plant protection products containing these active substances. In particular, EFSA identified high acute risks for bees from exposure via dust as regards several crops, from consumption of residues in contaminated pollen and nectar as regards some crops and from exposure via guttation fluid as regards maize. In addition, EFSA stated that unacceptable risks, due to acute or chronic effects on colony survival and development, could not be excluded for several crops and identified a number of data gaps for each of the evaluated crops, in particular as regards long-term risk to honey bees from dust exposure, from residues in pollen and nectar and from exposure from guttation fluid.
 
 
The Law
 
In the light of the new scientific evidence gathered by EFSA, the EU Commission considers that there are indications that the approved uses of the three neonics no longer satisfy the approval criteria provided for in Article 4 of Regulation (EC) No. 1107/2009, with respect to their impact on bees, and that the high risk for bees could not be excluded except by imposing further restrictions.
 
As it is too often the case in EU policymaking (especially in non-legislative decision making), we don’t have access to the text of the Commission proposal that has been put to a vote first in the SCFCAH and then in the Appeal Committee. Despite the rhetoric (and, after Lisbon, the legal requirement) of transparency surrounding the work of the EU, to retrieve a Commission proposal remains disappointingly too difficult. Ironically, it is the power of Google (not that of Eur-lex) that – despite its allegedly abusive nature – enabled us to track the text of the proposal, which is likely to be slightly modified in its final adoption (e.g. date of entry into force of the restrictions, transitional period, etc). We learned from this accidentally-found document that the main elements of the Commission's proposal, as confirmed by the Commission’s press release, are the following :
 
  • The proposal restricts the use and placing on the market of 3 neonicotinoids (clothianidin, imidacloprid and thiametoxam) for seed treatment, soil application (granules) and foliar treatment on bee attractive plants and cereals.
  • Exceptions will be limited to the possibility to treat bee-attractive crops in greenhouses, in open-air fields only after flowering.
  • The restrictions will apply from 1 December 2013.
  • As soon as new information is available, and at the latest within 2 years, the Commission will review the conditions of approval of the 3 neonicotinoids to take into account relevant scientific and technical developments.
  • The two-year ban will allow commission officials to re-examine the scientific studies that were submitted for approval of the pesticides in the first place and “to take into account relevant scientific and technical developments”.
 
 
In sum, under the EU envisaged proposal, besides the two exceptions allowing the use of these three neonicotinoid insecticides to crops attractive to bees in greenhouses (at any time) and in open fields (only after flowering), the proposed measure would constitute a ban of neonicotinoids. While temporary this ban is likely to ‘kill’ these pesticides not only on the EU market but also elsewhere, with the US authorities currently facing a petition calling for the adoption of similar restrictive measures. Moreover, the industry did not hesitate to remind society of the high social costs stemming from such restrictions and raised the issue of the alternatives to the use of the pesticides. They raised the ghost of the 'risk vs risk trade off': they claim that as a result of the ban farmers will be forced to go back to traditional chemicals whose safety is equally, if not more significantly, hazardous.
 
 
What’s next
 
Despite the Commission’s failure to win the support of a majority of Member States, the proposal banning temporarily the use and sale of neonics will soon be adopted. This illustrates many of the features of our EU risk regulation system:
 
-      In the absence of agreement among the member states (‘no opinion’), the Commission – not the member states – is entitled to (i) establish the ‘appropriate level of protection’ (ALOP) for European society vis-à-vis a given hazard, (ii) to identify the risk management options capable of ensuring that level of safety and (iii) choose the policy option that it deems the most appropriate in the given circumstances.
 
        In exercising these prerogatives, the Commission is not entirely free but is rather constrained by a set of principles. In particular,

 

  •     in setting the appropriate level of protection, the Commission must respect the Treaty-sanctioned duty of ensuring a ‘high level of protection’ and consult all stakeholders (see recital 8 of the Commission proposal)
  •      in identifying the right management option capable of ensuring that level of protection, the Commission must first gather the scientific evidence justifying its regulatory action then act within the limits of the principles of competence, of subsidiarity as well as of proportionality
  •        in particular, in determining the proportionate character of the measures available, the Commission’s choice may be shaped by the precautionary principle, which allows regulatory action even in a situation of scientific uncertainty. While this principle is not expressly mentioned in the Commission proposal banning neonics that proposal is embedded with the normative thinking typical of this principle. This stems from inter alia the temporary character of the proposed restrictions, one of the conditions to be satisfied to legally invoke the precautionary principle.
 
As these are the legal steps that the Commission must abide by in adopting its decision, it emerges that any Member State that voted against or abstained from the vote, having an interest in legally challenging the adopted decision, could raise their non-respect in front of the EU Courts. The same is true for any private economic operator affected by these decisions (e.g. Bayer, Syngenta, etc). Being the soon-to-be adopted ban a regulatory act (i.e. a decision amending implementing regulation 540/2011), the plaintiff will merely have to prove to be directly concerned by this decision to gain legal standing in front of the EU Courts
 
In other words, bees are poised to remain in the news.
 
Conclusions
 
Neonics provides another illustration of the reactive character of the EU risk regulatory system not only to new scientific studies but also to growing public concern. It places the EU among the vanguard groups of countries that, being concerned about the recently-found side-effects of neonics, restrict their uses and, as a result, the EU is - once more - coming under the scrutiny of its trading partners. This story contains all the necessary ingredients to make it the poster child of the current European struggle in regulating risk in the most sensitive and productive way for society as a whole.
While environmental groups welcomed the EU decision as a ‘victory for the bee’, the industry perceived it as the end of ‘evidence-based policy making’.
 
Who is right then?
 
As it is too often the case, both groups tend to overstate their claims and as a result they contribute to polarise the debate. On the one hand, the environmental groups overdo their gains as it won’t be this temporary ban to magically solve the ‘pollinator crisis’. On the other, the industry is wrong too in dismissing this decision as unscientific as this undisputably came out of a heavily scientific process that enabled all stakeholders to bring their evidence, discuss it and assess its merits. It is indeed irrefutable that data gap remain.
 
In these circumstances, the final word on this ban is set to be that of EU Courts. Unfortunately, these – due to the inherent epistemic limits of their action - are not necessarily well equipped to engage into assessing the merits of this decision. Due to this and many other reasons, they have historically refrained from exercising their scrutiny. This is a disturbing outcome.
 
As I wrote in the past, a great opportunity for reaching more balanced and less polarised decisions could be offered by the systematic preparation of impact assessment analysis on the Commission proposal of implementing measures. By proceduralising the steps required to adopt the final decision (e.g. consultation, prospective analysis, pre-legality check of the proposed decision, risk vs risk analysis), impact assessment on individual substances could offer a useful administrative oversight system that could potentially prevent the emergence of intractable legal disputes.
 
In sum, it is predicted that, regardless of its final outcome, this incipient precautionary-inspired decision won’t solve all problems of bees nor will lead to the alarming economic costs denounced by the relevant industry. Yet there is not doubt that it will offer another ‘test case’ to scrutinise the substantive viability as well as the procedural fairness of the EU risk regulation system.
 
 


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