We all know that pollinating bees are vital to producing crops and fruit, as the bees pollinate from flower to flower — a vital step for agricultural production.

Bee colonies have declined significantly in recent years, sometimes called Colony Collapse. There are various theories, but most believe it is due to pesticides and insecticides that kill bee populations as an unintended consequence of common agricultural practices.

A group of plaintiffs sued the Environmental Protection Agency trying to get the EPA to take action.

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COURT SYMPATHIZES WITH BEES

The Center for Food Safety and others sued the EPA claiming insecticides used by agricultural growers are toxic chemicals, which they are, which wash off and contaminate soil and water and inadvertently kill vast numbers of bees that pollinate food crops. The insecticides are called neonicotinoids.

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Judge William Alsup (see below) wrote, “The court is most sympathetic to the plight of our bee population and beekeepers…Perhaps the EPA should have done more to protect them, but such policy decisions are for the agency to make … [this is] a close call.”

2013 GUIDANCE

The plaintiffs argued that a 2013 EPA document called “Guidance For Inspecting Alleged Cases Of Pesticide Related Bee Incidents,” which essentially exempted pesticides from being registered and subject to governmental scrutiny, was an effective binding regulation.

If the Guidance was a regulation, it would have undergone an arduous environmental review process which was not done.

The EPA argued that the 2013 Guidance was “merely a recommendation.” Right. And as a recommendation versus a regulation, it needn’t be vetted with the public and agencies as a regulation normally would.

TRY AGAIN

Judge Alsup’s ruling essentially concluded that judges should not question day-to-day decisions by agencies, which is generally true.

But from what I could tell, the Judge opened the door to allow the plaintiffs to challenge the 2013 Guidance in a later proceeding. So the honeybees lost for the time being but their lawyers were essentially invited to present more evidence and come back for another bite at the (pollinated) apple.

MISSING IN THE MINARETS

One of my favorite books is Missing in the Minarets, a story about an experienced climber who went missing in the mountains in the Minaret region of the Sierra in July, 1933.

The climber was a well-known San Francisco attorney, Peter Starr. Renowned climbers from all over the country took part in the search, which involved, for the first time ever, an airplane.

The person who wrote the book was U.S. District Judge William Alsup. This highly regarded judge wrote the Opinion giving rise to this fabulous column.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim’s practice areas include: development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.