Insects and Insecticides

Written evidence submitted by Buglife

1. Buglife considers that conserving invertebrates, and particularly those that may be affected by pesticides, is important because they provide a significant proportion of the ecosystem services that humans require, including pollination which is worth £510 million per year to UK agriculture. In addition we believe that negligently causing the extinction of a species is wrong.

2. Buglife has been involved with the issue of neonicotinoid pesticide use since 2008 and in 2009 we produced a report (Kindemba 2009 [1] ) that summarised all the publically available scientific evidence relating to neonicotinoid pesticides and invertebrates. What we found concerned us, a high proportion of independent studies showed serious sub-lethal impacts on non-target invertebrates. Buglife had no position on the subject before undertaking the science review (we believe that pest control measures should each be judged on need and environmental safety), but after reviewing the science our report recommended:-

A review of the inclusion of imidacloprid, other neonicotinoids and fipronil on the positive list of authorised substances in Annex I of Directive 91/414.

A review of existing neonicotinoid and fipronil products authorised for outdoor use in the UK.

Until the reviews are completed a precautionary suspension of all existing approvals for products containing neonicotinoids and fipronil where these products have been authorised for outdoor use in the UK.

The development of international methodologies for assessing the effects of systemic pesticides and sub-lethal impacts on invertebrates.

3. Since 2009 we have seen no compelling evidence that would lead us to change this position, indeed several studies have reinforced very significantly the concerns that we developed at that time (Fipronil is no longer licenced for use in the UK).

4. The evidence we would like to present to the EAC is primarily contained in the attached letter titled "Neonicotinoid insecticides and bees: the state of the science and the regulatory response, Defra, 13 September 2012 - And re. a proposed claim for judicial review by Buglife – The Invertebrate Conservation Trust" that we have sent to Defra and that is intended to constitute a letter before claim for the purpose of the Judicial Review Pre-Action Protocol.

Our View in Summary

5. The Defra statement dated 13 September 2012 consisted of a review of some recent neonicotinoid studies and a conclusion that although some of the new studies provided evidence of sub-lethal effects of neonicotinoids, they did not give ‘unequivocal evidence that sub-lethal effects with serious implications for colonies are likely to arise from current uses of neonicotinoids’; accordingly, Defra considered that no change to the existing regulation of neonicotinoids is justified.

6. We consider that this decision is an administrative law decision which is susceptible to challenge by way of judicial review.

7. What we consider to be the appropriate legal framework for the decision and the issues that need to be considered are detailed in the attached letter presented as evidence and we won’t repeat them in this letter. There two broad areas of concern in relation to this inquiry 1) were the principles that should have been applied in making the decision applied; 2) were the factors that should have been considered included in the review and considered adequately.

8. Principles that should have been applied include 1) the precautionary principle, we believe that the relevant legislation is clear on this point, and 2) the principle of public participation in environmental decision making that is enshrined in the Aarhus Convention.

9. Factors associated with the use of neonicotinoid pesticides that should have been considered include, the potential:-

a) impacts on pollinators other than bees;

b) impacts on aquatic and soil wildlife;

c) impacts from the dust clouds released every time neonicotinoid seed is drilled (sown);

d) impacts on species listed for protection under the Natural Environment and Rural Communities Act;

e) impacts on the UK’s ability to meet the ecological and groundwater targets under the Water Framework Directive;

f) impacts on sites protected by the Birds and Habitats Directives;

g) impacts from garden and amenity use as well as agricultural use;

h) plant protection benefit of neonicotinoid use;

i) and an economic cost/benefit analysis that accounts for effects on ecosystem services.

Recommendations

10. We encourage the EAC to:-

a) consider the increasing weight of evidence of serious sub-lethal effects;

b) bear in mind that there is very little funding for, or research undertaken, looking for problems and hence the absence of proof may be more a function of where research funding is allocated than any reflection of the reality of the situation;

c) examine the small numbers of studies that have suggested that at least domestic honeybee hives are not radically affected by neonicotinoids and to ask if the studies are statistically robust, or would be able to detect a significant sub-lethal effect that would operate over a period of months;

d) bear in the forefront of their mind that honeybees are artificially sustained domestic animals that are responsible for less then 10% of pollination services and that the environmental safety and economic impact of neonicotinoids must be considered in the context of wild pollinator populations that are responsible for 90% of pollination and are inherently more vulnerable to pesticides than honeybees;

e) include in this review the impact on freshwater life, particularly bearing in mind that the Blueprint Coalition has just scored the Government E in relation to pesticide pollution of water bodies in its annual review of progress towards a sustainable water policy - http://www.wcl.org.uk/docs/Blueprint_for_Water_Scorecard_6Nov12.pdf;

f) consider what effects the growing popularity of neonicotinoid based garden pesticides are having on the environment and if the impact of garden and amenity use has been adequately considered by Defra;

g) NOT limit its inquiry and recommendations to the important scientific questions that this issue raises, but also to consider the test that should be applied to reach a decision to suspend or ban a pesticide. Should the environment be protected only after there is absolute proof of impacts, or should the importance of preventing damage to the environment mean that in certain instances action of a precautionary nature is needed? What does the law have to say on these questions?

Annex I

Letter from Buglife to Defra Secretary of State

Dear Secretary of State

Re. Neonicotinoid insecticides and bees: the state of the science and the regulatory response, Defra, 13 September 2012

And re. a proposed claim for judicial review by Buglife – The Invertebrate Conservation Trust

Introduction

1. I write on behalf of Buglife – The Invertebrate Conservation Trust ("Buglife"). The purpose of this letter is to inform you of a proposed judicial review challenge by Buglife to your Department’s decision, contained in the above Defra statement dated 13 September 2012 (the "Statement"), not to make any changes to the regulation of neonicotinoid insecticides (the "Decision").

2. This letter is intended to constitute a letter before claim for the purpose of the Judicial Review Pre-Action Protocol. A summary of the information required by Annex A to that Protocol is set out at the end of this letter.

The Decision

3. In its Statement, Defra considered 15 recent studies examining the effects of neonicotinoid insecticides on bees (summarised at Annex 1 to the Statement), with a view to deciding inter alia whether further restrictions on the use of neonicotinoids are required: see §1 of the Statement. Defra’s conclusions, as summarised at §2 of the Statement, were that although some of the new studies provide evidence of sub-lethal effects of neonicotinoids, they do not give ‘unequivocal evidence that sub-lethal effects with serious implications for colonies are likely to arise from current uses of neonicotinoids’; accordingly, while it will continue work in this area, Defra considers at present that no change to the existing regulation of neonicotinoids is justified. 

4. We consider that Defra’s decision not to make any changes to existing regulation (i.e. the Decision) is an administrative law decision which in principle is susceptible to challenge by way of judicial review .

Buglife – The Invertebrate Conservation Trust

5. Buglife is a company limited by guarantee and a registered charity (no. 1092293) that represents invertebrates and their conservation. Invertebrates are all the animals that do not have backbones – 98% of all animal species - and even when plants, fungi and microorganisims are included, 64% of all British species are invertebrates. Buglife considers that conserving invertebrates is important because they provide a significant proportion of the ecosystem services that humans require, including pollination which is worth £510 million per year to UK agriculture. In addition causing the extinction of a species is morally repugnant and Buglife works to prevent this happening.

6. Buglife was founded in 2000 in response to a generally recognised need (brought into sharp focus by the creation of the UK Biodiversity Action Plan in 1994) for an organisation specialising in invertebrate conservation. Its aim is to halt the extinction of invertebrate species and to achieve sustainable populations of invertebrates, and it seeks to do so by practical conservation projects, enhancing education and knowledge, and assisting in the development of law and policy, among other things.

7. In appropriate cases, Buglife seeks to fulfil its charitable objectives by using judicial review proceedings to challenge administrative decisions which unlawfully threaten, or fail to protect, invertebrate life. The Decision in the present case appears to Buglife to be of just such a kind. We consider that Buglife would have standing to bring a challenge of the kind described in this letter before claim and would invite you to agree that that is the case.

The legal framework

Regulation 1107/2009

8. The authorisation of the use of pesticides in the UK is governed by EU law. Regulation 1107/2009/EC concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC ("Regulation 1107/2009") lays down harmonised rules for the authorisation of ‘plant protection products’ including pesticides, and for their placing on the market, use and control within the EU.

9. Regulation 1107/2009, as its recitals record, is based on the high level of protection principle:

‘The purpose of this Regulation is to ensure a high level of protection of both human and animal health and the environment and at the same time to safeguard the competitiveness of Community agriculture’ (Recital 8);

‘The provisions governing authorisation must ensure a high standard of protection. In particular, when granting authorisations of plant protection products, the objective of protecting human and animal health and the environment should take priority over the objective of improving plant production’ (Recital 24).

10. Regulation 1107/2009 is also, as Article 1(4) provides, ‘underpinned by the precautionary principle, in order to ensure that active substances or products placed on the market do not adversely affect human or animal health or the environment’.

11. The mechanism of the Regulation, in effect, requires all pesticides available in EU Member States to undergo a two-stage approvals process.

12. At the first stage, ‘active substances’ (the active chemicals contained in plant protection products) are assessed at the European level. Article 4 lays down the criteria for approval of active substances. Active substances must be approved if it may be expected, in the light of current scientific and technical knowledge, that plant protection products containing that active substance (or residues of that substance) meet certain requirements. These include the requirement that at least one plant protection product containing the active substance must among other things (see paragraphs 3 and 5 of Article 4):

a. be sufficiently effective;

b. have no immediate or delayed harmful effect on human health, including that of vulnerable groups, or animal health, directly or through drinking water;

c. have no unacceptable effects on the environment, having particular regard to the following considerations where the scientific methods to assess such effects are available:

i. its distribution in the environment;

ii. its impact on non-target species, including on the ongoing behaviour of those species; and

iii. its impact on biodiversity and the ecosystem.

13. There remains, however, a second stage, whereby plant protection products containing an active substance or substances must be approved at the national level before being placed on the market. The requirements for the authorisation of plant protection products are laid down in Article 29. Before approving the plant protection product, Member States must be satisfied that the active substances used in the product have been approved and that, in the light of current scientific knowledge, the substance complies with the requirements of Article 4(3) referred to in paragraph 12 above.

14. Compliance with these requirements must be established by "official or officially recognised tests and analyses carried out under agricultural plant health and environmental conditions relevant to the use of the plant protection product in question and representative of the conditions prevailing in the zone where the product is intended to be used." (Article 29(3)).

15. The assessment of whether the active substance or plant protection product will meet the relevant requirements (i.e. the first and second stage approvals) must be made pursuant to the uniform principles set out in Regulation 546/2011 (the "Uniform Principles"). The following Uniform Principles are of particular relevance to the approval of neonicotinoids:

a. Member States shall ensure that the data submitted is acceptable in terms of quantity, quality, consistency and reliability.

b. Member States shall consider other relevant technical or scientific information they can reasonably possess with regard to the performance of the plant protection product or to its adverse effects.

c. Member States shall consider possible elements of uncertainty in the information obtained during the evaluation.

d. Member States shall evaluate the possibility of exposure of aquatic organisms to the plant protection product.

e. Member States shall evaluate short-term and long-term risk to honeybees.

16. Both first and second stage approvals involve input from and consideration by different regulatory bodies. At the EU level, the European Food Safety Authority (the "Authority") is the technical body which advises the Commission and carries out risk assessment and risk communication in relation to food safety. In the UK, the Advisory Committee on Pesticides (ACP), an independent scientific advisory committee provides advice to ministers on pesticide related issues. Product approvals are handled by the Chemicals Regulation Directorate (CRD) of the Health and Safety Executive which works with Defra as the competent authority with strategic policy responsibility for the area. Defra also receives technical advice from other expert groups including Defra’s Food and Environment Research Agency (FERA).

17. Article 44 governs the withdrawal or amendment of authorisations of plant protection products. It provides in material part as follows:

‘1. Member States may review an authorisation at any time where there are indications that a requirement referred to in Article 29 is no longer satisfied.

A Member State shall review an authorisation where it concludes that the objectives of Article 4(1)(a)(iv) and (b)(i) and Article 7(2) and (3) of Directive 2000/60/EC may not be achieved.

2. Where a Member State intends to withdraw or amend an authorisation, it shall inform the authorisation holder and give him the possibility to submit comments or further information.

3. The Member State shall withdraw or amend the authorisation, as appropriate, where:

(a) the requirements referred to in Article 29 are not or are no longer satisfied..."

18. Article 21 empowers the Commission to review the approval of an active substance, including where a request is made by a Member State "in light of new scientific and technical knowledge and monitoring data...." as well as where it determines that it should act on its own initiative.

19. Article 55 requires the use of plant protection products to comply with the general principles of integrated pest management set out in Article 14 of and Annex III to Directive 2009/128/EC. Those principles require, among other things, that pesticides ‘shall be as specific as possible for the target and shall have the least side effects on… non-target organisms and the environment’ (paragraph 5 of Annex III) and that uses should be kept to the minimum level necessary (paragraph 6).

20. Regulation 1107/2009 and its associated Regulations are directly applicable and so have immediate legal effect in the United Kingdom without the need for implementing legislation; but certain provisions ancillary to Regulation 1107/2009 are made by the Plant Protection Products Regulations 2011.

Directive 91/414/EC

21. Most neonicotinoids currently used in plant protection products in Europe were approved as active substances under the procedure laid down by Directive 91/414/EC, which Regulation 1107/2009 replaced. The old procedure similarly comprised two stages i.e. approval of active substances at EU level and approval of products at Member State level. Authorised active substances were added to a list, contained in Annex I to Directive 91/414/EC, by amending directives.

22. Acetamiprid and thiacloprid were added as active substances with effect from 1 January 2005 following the adoption of Directive 2004/99/EC. Imidacloprid was added as an active substance with effect from 1 August 2009 following the adoption of Directive 2008/116/EC. Thiamethoxam was added with effect from 1 January 2007 following the adoption of Directive 2007/6/EC. Clothianidin was added with effect from 1 August 2006 following the adoption of Directive 2006/41/EC.

23. These directives also set conditions for the inclusion of the active substances in Annex I. For example, the inclusion of thiacloprid was subject to the requirements that Member States pay particular attention to:

a. the protection of non-target arthropods;

b. the protection of aquatic organisms; and

c. the potential for groundwater contamination.

24. Directive 2010/21/EU introduced additional specific provisions relating to seed treatment use of clothianidin, imidacloprid and thiamethoxam. These provisions relate to labelling of seeds, professional application of seed treatments and monitoring of possible impacts on bees following the taking of precautionary measures by certain Member States after substantial losses of bee colonies related to accidental releases of the relevant active substances.

25. Active substances which were included in Annex I are now deemed approved under Regulation 1107/2009 and are listed in a separate implementing Regulation (540/2011/EU). This Regulation replicates the conditions for approval that were previously laid down in the amending Directives.

The factual background

26. The following is a brief overview of the factual background relevant to the Decision and Buglife’s long-running engagement with Defra over the issue.

27. Neonicotinoids are a set of nicotine-based insecticides. They are neurotoxins which attack the central nervous system of invertebrates. They are commonly used in the form of "systemic" pesticides; unlike conventional spray pesticides these may be applied as seed dressings or soil treatments, so the chemical is absorbed by the root system and transported to all parts of the plant, including the nectar and pollen. Systemic pesticides of this kind may have certain advantages: for example, less of the chemical is required. However, such use also carries with it disadvantages: for example, it results in long-term exposure to non-target species and means pesticides are used routinely regardless of whether crops are at risk from pests.

28. Five principal neonicotinoids are currently found in plant protection products (i.e. pesticides) authorised for use in the UK: thiamethoxam, thiacloprid, clothianidin, acetamiprid and imidacloprid.

29. There has been growing concern that neonicotinoids are contributing to declines in populations of pollinating insects including (but not limited to) honeybees, bumblebees and butterflies. These declines are thought to be at least in part attributable to the sub-lethal and chronic (i.e. long-term) effects of neonicotinoids. For example, these insecticides are thought to inhibit bees’ ability to navigate and communicate. In social insects such as bumblebees, the health of the colony as a whole relies on the ability of individual bees to forage effectively, therefore sub-lethal effects at the individual level can manifest as lethal effects at the colony level, and as declines at the population level. Non-social insects are unable to fall back on the support of others to survive and may be even more vulnerable to reproduction failure and population decline.

30. These concerns have led to full and partial bans of some neonicotinoid products in France, Germany, Italy and Slovenia in the recent past, including the most recent action taken in France this year in relation to Cruiser OSR.

31. In 2008, Defra commissioned a report "Are pesticide risk assessments for honeybees protective of other pollinators" stated that ‘there are many cases where species are several orders of magnitude more sensitive on a per individual or weight basis than honeybees, e.g. Lepidopteran larvae’, and concluded that ‘more detailed toxicity and exposure information for a range of species is required for a robust assessment of the risk posed.’

32. In January 2009, a group of European NGOs submitted a request for an internal review of the decision by the Commission to authorise imidacloprid, on the basis that it does not meet the requirements of Article 4 of Directive 91/414 as evidence fails to demonstrate that it has no unacceptable effect on the environment. The Commission refused the request on the grounds that the NGOs lack standing.

33. Buglife, along with other UK NGOs, have repeatedly raised concerns about the impacts of neonicotinoids on bees and other non-target invertebrates. In September 2009 Buglife published a report, which was sent to Defra. The report:

a. summarised several independent scientific studies published between 2001 and 2008 which demonstrated that imidacloprid, a widely used neonicotinoid, had significant negative impacts on bees and other non-target invertebrates at levels predicted to be present in the UK countryside;

b. criticised the test methodologies used in the EU process for authorising pesticides for failing to properly assess sub-lethal and chronic risks to honeybees and other non-target invertebrates;

c. called on Defra to adopt a precautionary approach by suspending all existing approvals for products containing neonicotinoids pending a review of their inclusion on the list of authorised active substances.

34. The ACP responded to the Buglife Report in November 2009. The ACP reassessed the data for Chinook, a seed treatment containing imidacloprid, and concluded that "semi field and field studies indicate that there are no gross impacts on foraging honeybees."

35. However, the ACP acknowledged that there was a gap in the Government’s understanding regarding the effect of the insecticides on wintering bees: "it is feasible that low level chronic (i.e. long-term) exposure could cause adverse effects on overwintering bees such that the ability of individuals to survive the winter is impaired. It is proposed that this issue is a potential data gap."

36. In July 2010, Defra confirmed that it did not intend to take any action in response to the Buglife Report.

37. There followed a series of correspondence between Buglife and various other NGOs and Defra during 2010 and 2011, in which Buglife continued to criticise Defra’s response to the Report and its approach to the regulation of neonicotinoids. In particular, Buglife objected to Defra’s focus on domestic honeybees to the exclusion of other non-target invertebrates and the environment, and its failure to apply the precautionary principle. In the course of this correspondence, Professor Bob Watson, Defra’s Chief Scientific Adviser endorsed the use of the precautionary principle: "The precautionary principle should be applied to the risk management phase. The UK Government supports the appropriate use of the precautionary principle as a guide to decision-making when evidence is inconclusive."

38. Between 2010 and 2012, a series of scientific studies were published which provided further evidence that low doses of neonicotinoid insecticides have sub-lethal effects on honeybees. For example:

a. Sub-lethal exposure to thiamethoxam was shown to reduce learning ability, reduce memory, and increase hive death rate by causing foraging honeybees to fail to navigate their way back to the colony.

b. Imidacloprid (and when studied Clothianidin) reduced waggle-dancing, reduced the capacity of workers to produce food for their young, reduced activity, increased forage time, lowered foraging efficiency, and caused disorientation.

c. Exposure to sub-lethal doses of imidacloprid and thiacloprid highly increased susceptibility to infection of honeybees, and mortality of honeybees already infected by, Nosema disease.

d. Sowing dust and guttation fluid produced as by-products of standard use of neonicotinoids have been shown to be capable of killing honeybees.

These studies, many conducted under field or semi-field conditions (i.e. not just in laboratories), and all using concentrations that can be encountered in arable fields, indicate illustrate not only a direct risk to honeybee colonies (probably responsible for c. 9% of pollination services), but also increase concern levels for wild pollinators. When the risk to one type of insect is shown to be higher than thought, then it is highly probable that wild bees, moths, hoverflies and other insects are also more vulnerable to the effects of low doses of these chemicals than previously thought. These wild pollinators are responsible for over 90% of pollination services and are crucial to a healthy environment.

39. Between 2010 and 2012, there were also been a series of scientific studies published which provided further evidence that low doses of neonicotinoid insecticides could have additional significant effects on the environment. For example:

a. Colonies of bumblebees exposed to imidacloprid experienced lower colony growth and an 85% reduction in queen production.

b. Imidacloprid reduced the ability of bumblebees to feed and reduced bumblebee brood production by one third.

c. Chronic exposure of bumblebees to imidacloprid and the pyrethroid l-cyhalothrin at concentrations that could approximate field-level exposure impaired natural foraging behaviour and increased worker mortality leading to significant reductions in brood development and colony success.

d. Imidacloprid was shown to have very significant impacts on earthworm growth and activity.

e. Neonicotinoids were shown to be even more toxic to solitary bees than to bumblebees.

f. Dandelions growing near neonicotinoid treated fields and visited by foraging bees were found to contain neonicotinoids.

g. Widespread contamination of Dutch surface waters with imidacloprid was found, with concentrations regularly exceeding the Maximum Tolerable Risk levels.

h. Imidacloprid was detected in 67 samples (89%) of Californian surface water and concentrations exceeding the safety benchmark in 19% of samples.

These studies, many conducted in the field or semi-field conditions and all observing or applying pesticide concentrations encountered in the countryside, indicate a direct significant risk to wild pollinators and the environment.

40. The new science led to renewed calls for the suspension of neonicotinoids in the UK. In April 2012, the Pesticides Action Network UK ("PAN UK") initiated a joint letter on behalf of a group of NGOs, including Buglife, to the Secretary of State for Environment, Food and Rural Affairs (then Caroline Spelman) calling for a precautionary suspension of neonicotinoid approvals. Defra refused to take any action on the basis that "the body of evidence assessed so far supports the conclusion that neonicotinoids to not threaten honeybee populations."

41. In parallel, Buglife engaged in a further round of correspondence with Professor Watson of Defra, again highlighting concerns at Defra’s continued failure to address risks posed to non-bee invertebrates and failure to apply the precautionary principle.

42. In May 2012, EFSA published its scientific opinion on the development of a risk assessment of plant protection products on bees, at the request of the Commission. The opinion identified a number of major shortcomings in the current risk assessment methodology. For example:

a. Conventional regulatory tests based on acute toxicity are likely to be unsuited to assess the risks of long-term exposures to pesticides.

b. Laboratory conditions fail to take account of intermittent and prolonged exposures of adult bees, exposure through inhalation and exposure of larvae.

c. The conventional standard tests do not fully assess sub-lethal doses of pesticides.

d. The guideline for field testing has several major weaknesses leading to uncertainties concerning the real exposures of the honeybees – better suited to assessment of spray products than seed and soil treatments.

The opinion recommends separate risk assessment for bumblebees and solitary bees. The opinion formed the basis for EFSA’s new draft guidance document which was published for consultation in September 2012 and is due to be finalised by the end of 2012.

43. On 13 September 2012, Defra published the Statement. The Statement found that "although some of the new studies provided evidence of sub-lethal effects of neonicotinoids in the conditions applied in the research, none of the studies give unequivocal evidence that sub-lethal effects with serious implications for colonies were likely to arise from current uses of neonicotinoids and that the existing studies submitted in support of the present regulatory approvals fully meet required standards."

44. Based on these findings, Defra concluded that:

a. It is appropriate to update the process for assessing the risks of pesticides to bees in the light of developments in the science, including the latest research.

b. Further research will be carried out to fill identified evidence gaps.

c. The recent studies to not justify changing existing regulation. However, Defra left open the possibility of changes to the regulation of neonicotinoids in light of new research.

First proposed ground of review: breach of Article 44 of Regulation 1107/09

45. One of Defra’s stated purposes in making the Statement is "to consider whether...further restrictions on the use of Neonicotinoids are required" (paragraph 1). It would appear that Defra has conducted a review for the purposes of Article 44, para 1 of Regulation 1107/09 so as to be able to determine whether it is required to act under Article 44 para 3 to withdraw or amend authorisation of products containing neonicotinoids. Article 44 requires Member States to withdraw or amend authorisations where the requirements of Article 29 are no longer satisfied.

46. It is clear, especially in light of recent developments in the scientific literature, that the requirements referred to in Article 29 of Regulation 1107/09 are no longer satisfied in relation to any UK-authorised plant protection products containing the neonicotinoids thiamethoxam, thiacloprid, clothianidin, acetamiprid or imidacloprid. A schedule of such plant protection products (the "Products"), including details of their manufacturer and active substances, is enclosed, - titled "Neonicotinoid Products". In particular, none of the Products complies, in light of current scientific and technical knowledge, with the requirements provided for in Article 4(3)(e) (contrary to the requirement in paragraph 1(e) of Article 29): it cannot be established that any of the Products ‘have no unacceptable effects on the environment’. On the contrary, there is significant evidence in the recent literature reviewed in Defra’s Statement, that neonicotinoids have unacceptable effects on the environment, having regard to their impact on non-target species,  and bees in particular.

47. Regulation 1107/09 is underpinned by the precautionary principle. Defra itself has acknowledged in correspondence between Buglife and Defra’s Chief Scientist, Robert Watson) that the precautionary principle must play a key role in the authorisation process; it follows that it must play a key role in the review of any authorisation.

48. The Statement acknowledges that there is solid evidence that products containing neonicotinoids pose a risk to bees. Further, the Statement acknowledges that the current risk assessment process is inadequate for assessing the extent of those risks:

"it is appropriate to update the process for assessing the risks of pesticides to bees in the light of developments in the science – including the latest research. This exercise should include the development of a new risk assessment for bumble bees and solitary bees, alongside an update risk assessment for honey bees."

This is consistent with the findings of EFSA, the technical body responsible for advising the Commission on risk assessment.

49. Nowhere in the Statement does Defra mention, still less discuss, the precautionary principle. On the contrary, Defra appears to apply the very inverse of the precautionary principle, justifying its Decision by an assertion that none of the recent studies provides "unequivocal" evidence of serious implications for bee colonies.

50. In the circumstances the only lawful decision compliant with the obligations imposed by Article 44, interpreted in a manner consistent with the precautionary principle, would be to withdraw or amend the authorisations of the Products pending the completion of the revision of the rules for risk assessment and the further research that is underway to fill the gaps in the evidence.

Second proposed ground of review: further breaches of duty or failures to have regard to mandatory, relevant considerations

51. Further, it appears from the Statement that in making the Decision Defra has failed to have regard to a number of considerations, which, as a matter of law Defra was bound to consider, including: 

a. Impacts on non-target species other than bees.

i. The Statement only addresses the impacts of neonicotinoids on bees (domestic honeybees, wild bumblebees and solitary bees). In reviewing the authorisation of a plant protection product under Article 44, Defra must, when considering whether a product has "no unacceptable effect on the environment" consider its impact on "non-target species." While the Uniform Principles specifically refer to short and long term impacts on honeybees, it is clear from an ordinary construction of Article 4(3) that "non-target species" is not limited to honeybees or even to bees. This is also clear from the various conditions laid down for the use of products containing active substances, which require member states to pay particular attention to the protection of a number of non-target species including "aquatic organisms", "non-target arthropods" "granivorous birds" and "small herbivorous animals". This is particularly concerning in light of the 2008 Defra report which highlighted the shortcomings of pesticides risk assessments for a wider range of non-target organisms (see paragraph 31 above). On the face of it, Defra has failed to conduct any "assessment of the risk posed" to any non-target species other than bees before making the Decision.

ii. The duty to consider non-target species must also be considered in light of the Secretary of State’s duties under Section 41 of the Natural Environment and Rural Communities Act 2006. In accordance with Section 41, the Secretary of State has published a list of the living organisms and types of habitat which in the Secretary of State's opinion are of principal importance for the purpose of conserving biodiversity. The list includes the following living organisms:

Barberry Carpet Pareulype berberata

Grey Carpet Lithostege griseata

Pale Shining Brown Polia bombycina

Striped Lychnis Shargacucullia lychnitis

White-spotted Pinion Cosmia diffinis

Pale Eggar Trichiura crataegi

Garden Dart Euxoa nigricans

Dot Moth Melanchra persicariae

Hedge Rustic Tholera cespitis

Green-brindled Crescent Allophyes oxyacanthae

Dusky-lemon Sallow Xanthia gilvago

Large Nutmeg Apamea anceps

Rosy Rustic Hydraecia micacea

Grey Partridge Perdix perdix

Yellowhammer Emberiza citrinella

Large Garden Bumblebee Bombus ruderatus

Shrill Carder Bee Bombus sylvarum

Scabious Cuckoo Bee Nomada armata

Necklace Ground Beetle Carabus monilis

Set-aside Downy-back Ophonus laticollis

Mellet's Downy-back Ophonus melletii

A Downy-back Ground Beetle Ophonus puncticollis

Oolite Downy-back Ophonus stictus

River-shore Cranefly Rhabdomastix japonica

Iron Blue Mayfly Nigrobaetis niger

Depressed River Mussel Pseudanodonta complanata

Desmoulin's Whorl Snail Vertigo moulinsiana

All of these species occur in agricultural habitats where neonicotinoids are directly used; in habitats adjacent to agricultural habitats that may be affected by airborne dust from seed planting; or in aquatic habitats directly affected by run-off and seepages of water from such habitats that are likely to contain the pesticides. These species are therefore likely to be threatened by neonicotinoid pesticides or the effects of these pesticides on their food supply. By deciding not to withdraw the approvals for the Products without first considering their impact on species other than bees, Defra has failed to have regard to or act in accordance with the Secretary of State’s duty under section 41(3)(a) to take reasonably practicable steps to further the conservation of any of the organisms set out above.

b. Impacts on protected areas. Article 6(3) of Directive 92/43/EEC (the "Habitats Directive") requires an ‘appropriate assessment’ to be conducted in relation to any plan or project not directly connected with a special areas of conservation but ‘likely to have a significant effect thereon’. Since the neonicotinoids in the Products are water-mobile and sowing dust can be air-borne, there is a real possibility or likelihood that by their continued use they will be carried into Special Areas of Conservation and Special Protection Areas, significantly affecting them by causing damage to invertebrate life therein. However, it appears that Defra did not carry out any Habitats Directive analysis of the likely effect of the continued use of neonicotinoids on Special Areas of Conservation before making the Decision.

c. Potential to compromise compliance with Directive 2000/60/EC (the "Water Framework Directive")

i It is clear from Regulation 1107/09 (Recital 16, Recital 47, Article 21 and Article 44) that the potential for the adverse impact of pesticides on the achievement of the water quality objectives of the Water Framework Directive is a critical factor in the approval of both active substances and plant protection products.

ii The objectives of Article 4(1)(a)(i) and (ii) of the Water Framework Directive state respectively that Member States shall implement the necessary measures to prevent deterioration of the status of all bodies of surface water, and shall protect, enhance and restore all bodies of surface water, with the aim of achieving good surface water status by 2015.

iii Article 4(1)(b)(i) requires Member States to prevent or limit the input of pollutants into groundwater and to prevent the deterioration of the status of all bodies of groundwater. Member States shall review an authorisation where it concludes that the objectives of Article 4(1)(b)(i) of the Water Framework Directive may not be achieved. Further, Regulation 540/2011/EU specifically requires member states to pay particular attention to the potential for groundwater contamination from thiacloprid, clothianidin, thiamethoxam. Neonicotinoids are water-mobile, toxic chemicals which by their nature leach into surface and ground waters.

iv The Products are ‘pollutants’ (by the definition contained in Annex VIII to the Water Framework Directive). It is recognised that Water Framework Directive delivery is still a work in progress in the UK. However, Defra does not appear to have carried out any analysis of the risk of groundwater contamination or to the achievement of good ecological and chemical statuses for surface waters posed by the use of the Products.

d. The extent of any benefit to plant protection. Recital (24) of Regulation 1107/2009 emphasises that it must be demonstrated that plant protection products ‘present a clear benefit for plant production’. This is reflected in the approval criteria for active substances and plant protection products, which requires that a plant protection product ‘shall be sufficiently effective’. However, the Decision appears to have been made without any consideration of the effectiveness of the Products or whether their effectiveness is sufficient to outweigh the environmental detriments the Products cause. There is good reason to believe that no such benefit is demonstrated by at least some neonicotinoids. For example, the Product "Biscaya" (containing thiacloprid) is marketed to destroy a pollinator population, namely pollen beetles. [2] However, it is scientifically established that oilseed rape replaces damaged flower buds by creating produces new buds when existing buds are damaged [3] ; and in these circumstances it is very difficult to see how the destruction of pollen beetles could have any benefit for oilseed rape production.

To give another example, Dr Phil Botham, Head of Product Safety at Syngenta, has gone on record to say that the Product "Cruiser OSR" creates nearly €1 billion of value for farmers and the oil seed rape chain across the EU. [4] By contrast, pollination services by invertebrates across Europe are worth £17bn. [5] if the use of Cruiser OSR reduced pollination rates by just 5% this economic cost would counteract the economic benefit of the plant protection product. Indeed there is evidence that global productivity of insect pollinated crops has not grown in line with other crops due to pollinator declines [6] .

e. The principle of integrated pest management. Article 55 of Regulation 1107/2009 requires use of plant protection products to comply with the general principles of integrated pest management set out in Article 14 of and Annex III to Directive 2009/128/EC. Those principles require, among other things, that pesticides ‘shall be as specific as possible for the target and shall have the least side effects on… non-target organisms and the environment’ and uses should be kept to the minimum level necessary. Systemic pesticides such as seed treatments by their nature lack targeting and cause chemicals to be used on a prophylactic, blanket basis rather than in response to specific risks of damage caused by pests. However, the Decision appears to have been made without any regard to this principle.

Third proposed ground of review: failure to ensure public participation in the Decision

52. Article 6 of the Aarhus Convention, to which both the EU and the UK are parties, requires that the public be given the opportunity to participate in decisions on proposed activities which may have a "significant effect on the environment." These requirements also apply when a public authority reconsiders or updates the operating conditions for such an activity. The continued use of the Products is plainly such a proposed activity. In those circumstances, Article 6 required the United Kingdom to ensure that the public were consulted before reaching the Decision. Defra has failed to conduct any such consultation. The Decision is therefore vulnerable to judicial review on the grounds of procedural impropriety.

Fourth proposed ground of review: unlawful inclusion of neonicotinoids in Reg. 540/2011

53. Lastly, and to the extent necessary, Buglife will contend that the five neonicotinoids in issue, on grounds associated with the evidence presented above and that previously submitted by others to the ECJ, ought themselves never to have been included as permitted active substances in Regulation 540/2011 or in its predecessor Annex to the Directive. If, as Buglife considers, the inclusion of neonicotinoids in Regulation 540/2011 is unlawful, the entire basis for the authorisation of the Products and for Defra’s Decision is undermined.

54. Buglife recognises that the domestic Court will be unable to resolve such a dispute, which concerns the legality of EU legislation. Buglife proposes, therefore, if – but only if – its other grounds of review are unsuccessful, to ask the Court to refer the lawfulness of the inclusion of those neonicotinoids in Regulation 540/2011 to the Court of Justice for a preliminary ruling. Such a route is plainly open to Buglife in principle, particularly since the challenge to the inclusion of imidacloprid by Pesticide Action Network and others was rejected by the Commission on grounds of lack of standing; cf. e.g. Salt Union v Commission [1996] ECR II-1475, §39. 

Request for information

55. So that we may better understand the Decision and the basis for it, and in the light of the grounds of review we have set out above, we would be grateful if you would provide us with the following information. Please also treat these requests, to the extent relevant, as made under the Environmental Information Regulations 2004.  For the avoidance of doubt, please respond to these requests within 14 days rather than the longer timeframes allowed under the Environmental Information Regulations 2004.

a. The Statement refers to existing studies in which "hives exposed to treated crops did not show any gross effects when compared to control hives exposed to untreated crops". Please can you send us copies of, or references to, all of these studies?

b. Has a risk assessment has been carried out of the impact of neonicotinoids on the NERC s41 species listed above? If yes, please provide the full risk assessment, details of the process and all relevant supporting documents?

c. Has an appropriate assessment of the risks that neonicotinoid pesticides present to SACs and SPAs been undertaken? If yes, please provide the full appropriate assessment, details of the process and all relevant supporting documents?

d. Please describe in detail all monitoring that has been undertaken for neonicotinoids in groundwater, water bodies and freshwater habitats, including the number of sites monitored, the detection levels of the monitoring and the results of such monitoring. Please describe how the process of determining and reviewing neonicotinoid pesticide uses has considered the likelihood of environmental damage to aquatic organisms and ecosystems.

e. Have any analyses been undertaken of the risks to achieving the aims of the Water Framework Directive from neonicotinoid pollution at site, catchment or national levels? If yes, please provide the full analyses, details of the process and all relevant supporting documents?

f. Please describe in detail all the monitoring that has been undertaken for neonicotinoids in soil, including the number of sites monitored, the detection levels of the monitoring and the results of monitoring. Please describe how the process of determining and reviewing neonicotinoid pesticide uses has considered the likelihood of environmental damage to soil ecosystems.

g. Studies undertaken by Bayer in the early 2000’s on rhododendron [7] and imidacloprid soil treatments and a paper published in 2012 examining nectar and pollen residues in a pumpkin crop [8] indicate that where the chemical is used as a drench or soil treatment the concentrations in nectar are vastly higher than usually recorded with seed treatments, and can persist at high levels for several years. As soil treatments and drenches are likely to predominate in urban areas what studies have been carried out examining the impacts on pollinators and other non-target species in these habitats and at these nectar and pollen concentration levels?

h. Has a risk assessment has been carried out of the impact on the environment of garden and amenity neonicotinoid containing Products? If yes, please provide the full risk assessment, details of the process and all relevant supporting documents.

i. Please supply the evidence that the use of Biscaya to control pollen beetles has a clear benefit for plant production.

j. Please provide the cost benefit analysis that demonstrates that neonicotinoids have a clear benefit for plant protection.

8 November 2012


[1] Kindemba V. 2009. The Impact of Neonicotinoid Insecticides on Bumblebees, Honey Bees and Other No n-target Invertebrates. Buglife - The Invertebrate Conservation Trust, Peterborough, UK.

[2] the “control of pollen beetles in oilseed rape”(http://www.bayercropscience.co.uk/product/insecticides/biscaya/; 23 Sept 2012).

[3] Ingrid H. Williams and J. B. Free 1979 Compensation of oil-seed rape (Brassica napus L.) plants after damage to their buds and pods. The Journal of Agricultural Science, Volume 92, Issue 1, pp 53-59 .

[4] (http://www.independent.co.uk/voices/letters/pesticides-and-bee-health-8005519.html; 8 August 2012).

[5] Nicola Gallaia, Jean-Michel Sallesc, Josef Setteled, and Bernard E. Vaissièrea 2009 Economic valuation of the vulnerability of world agriculture confronted with pollinator decline. Ecological Economics Volume 68, Issue 3, Pages 810–821 .

[6] Garibaldia, L A., Aizena, M A., Kleinc, A M., Cunninghamd, S A. and Hardere L D. 2011 Global growth and stability of agricultural yield decrease with pollinator dependence. PNAS April 5, vol. 108 no. 14 5909-5914

[6]

[7] ‘Residues of Imidacloprid WG 5 in Blossom Samples of Rhododendron sp. (variety Nova Zembia) after Soil Treatment in the Field 2003’ (Doering, Maus and Anderson 2004), ‘Residues of Imidacloprid WG 5 in Blossom Samples of Rhododendron sp. (variety Nova Zembia) after Soil Treatment in the Field – Application: Spring 2003, Sampling 2003 and 2004’ (Doering, Maus and Schoening 2004), ‘Residues of Imidacloprid WG 5 in Blossom Samples of shrubs of different sizes of the species Rhododendron sp. after drenching application in the field - Application: 2004, Sampling 2005’ (Doering, Maus and Schoening 2004)).

[8] Galen P. Dively, Alaa Kamel 2012 Insecticide Residues in Pollen and Nectar of a Cucurbit Crop and Their Potential Exposure to Pollinators J. Agric. Food Chem., 60 (18), pp 4449–4456

Prepared 19th November 2012