Today a panel of judges for the U.S. Court of Appeals for the Ninth Circuit said it will not require vacatur for Enlist Duo herbicide. The combination herbicide, with 2,4-D choline and glyphosate, was challenged in court by six plaintiffs, specifically suing EPA with Dow Agrosciences (now Corteva Agrisciences) listed as respondent-intervenor.
Plaintiffs include the National Family Farm Coalition, Family Farm Defenders, Beyond Pesticides, Center for Biological Diversity, Center for Food Safety and the Pesticide Action Network of North America.
The groups were petitioning to vacate the registration of Enlist Duo. They claimed EPA’s registration of Enlist duo violated parts of both the Endangered Species Act (ESA) and the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).
Here’s what judges had to say about each of the claims:
- Claim: EPA applied more lenient conditional registration standard rather than a more stringent unconditional standard when Enlist Duo was released in 2014.
- Response: Natural Resources Defense Council (NRDC) waived the argument but even absent waiver, the panel said the argument was not persuasive and registration documents supported that EPA was applying the unconditional standard.
- Claim: EPA incorrectly applied FIFRA’s “cause any unreasonable adverse effects” unconditional registration standard in its 2017 decision.
- Response: EPA conceded it cited the wrong standard, but the panel of judges said that any error was harmless because the standard for unconditional registration was higher, not lower, than the standard for conditional registration. The panel said this error didn’t show EPA lacked evidence to support its conclusions.
- Claim: EPA lacked substantial evidence for its 2014, 2015 and 2017 registration decision for four reasons: EPA failed to assess harm to monarch butterflies; EPA failed to consider that Enlist Duo would increase the use of glyphosate over time; EPA failed to properly consider 2,4-D’s volatility; and EPA should have accounted for the potential synergistic effect of mixing Enlist Duo with glufosinate.
- Response: The court agreed that EPA failed to assess the harm to monarch butterflies. It rejected the claim Enlist Duo would increase glyphosate use over time. Judges rejected the contention that EPA didn’t consider 2,4-D volatility and said the agency reasonably relied on studies that concluded 2,4-D choline volatility will not cause unreasonable adverse effects on the environment. Finally, the court rejected that EPA should account for a synergistic effect of Enlist Duo and glufosinate and said this concern was speculative.
- Claim: EPA’s ‘no effect’ findings on plants, in reference to ESA, and animals is incorrect.
- Response: EPA did was the ESA required it to do, assess risks to determine whether the expose of protected species and critical habitat to potentially harmful chemicals would have any effect. The panel says EPA’s ‘no effect’ findings were not contrary to the law.
- Claim: EPA’s rationale for limiting the “action area” to the treated field was not sound.
- Response: The panel accorded deference to the EPA in the way it chose to define the action area.
- Claim: EPA violated its duty to insure no “adverse modification” of critical habitate by relying on its 2016 risk assessment.
- Response: The panel rejected this argument.
The panel provided EPA with a remedy for its error concerning the monarch butterfly registration decision under FIFRA, but did not recommend product vacatur.
“EPA’s error in failing to consider harm to monarch butterflies caused by killing target milkweed was not ‘serious,’” court documents state.
“Corteva is pleased with the Ninth Circuit decision to reject petitioners’ attempts to vacate the registration of Enlist Duo herbicide. The registration of Enlist Duo remains in place and this leading weed control product can continue to be sold and used by farmers,” the company said in a statement provided to Agweb.
Petitioners were not happy with the decision.
“Today’s Ninth Circuit Court of Appeals decision correctly held that the U.S. Environmental Protection Agency (EPA) failed to protect Monarch butterflies in registering Dow’s toxic pesticide Enlist Duo,” in a statement from George Kimbrell, Legal Director of Center for Food Safety and Lead Counsel in the Case. “These iconic butterflies are in steep decline from the overuse of glyphosate-based pesticides like Enlist Duo, which kill off the farm field milkweed plants that are indispensable for the butterfly’s reproduction. In response to a petition spearheaded by Center for Food Safety, the Monarch is under consideration as a threatened species under the Endangered Species Act. Unfortunately, the Court erred in concluding that the EPA approval was otherwise lawful and allowing the pesticide to stay on the market.”
Read more about recent lawsuits here: