U.S. Court of Appeals for the Ninth Circuit Issued Two Separate Significant Decisions in Pesticide Cases (Part 2)

Written by Chloe Marie – Research Specialist

In recent weeks, the U.S. Court of Appeals for the Ninth Circuit handed down two separate decisions ruling on the pesticide registrations of Dicamba and Enlist Duo.  In a prior article, we discussed the reasoning and arguments handed down by the Court of Appeals in the dicamba case (National Family Farm Coalition, et al. v. U.S. EPA, et al., No. 19-70115).  In this article, we will provide an overview of the Court of Appeals decision dated July 22, 2020, upholding EPA’s registration approval of Enlist Duo – a pesticide developed by Dow Agrosciences, LLC, comprising an active ingredient combination of 2,4-dichlorophenoxyacetic acid (2,4-D) choline salt and glyphosate (National Family Farm Coalition, et al. v. U.S. EPA et al., No. 17-70810).

Opinion Summary – National Family Farm Coalition, et al. v. U.S. EPA, et al., No. 17-70810)

Factual and Procedural Background

The National Family Farm Coalition (NFFS) and the National Resource Defense Council (NRDC) along with other environmental groups filed a petition in March 2017 for review of EPA’s three successive decisions to approve the registration of Enlist Duo in 2014, 2015, and 2017.  In 2017, EPA renewed the prior registration of Enlist Duo, which was granted in 2014 and then amended in 2015.  The current registration allowed the use of Enlist Duo in 34 states for corn, soybean, and cotton crops.  EPA based its decision on existing and new data that the combination of 2,4-D and glyphosate in Enlist Duo did not represent a threat for the environment.

The petitioners asserted many claims under both the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA); however, in this article, we will not address the claims made under the ESA as we will focus exclusively on the claims brought under FIFRA that are relevant to the EPA registration review process for pesticides.

Ninth Circuit’s Reasoning and Ruling

NRDC and NFFS both argued that EPA failed to apply the correct standard of registration in its 2014 and 2017 decisions.  First, NRDC alleged that EPA wrongly applied the conditional registration standard instead of the unconditional one when registering Enlist Duo in 2014.  The Court of Appeals rejected this argument and considered it waived since NRDC had not raised this argument in any way during its first challenge to the 2014 registration.  In addition, the court stated that, even absent waiver, “NRDC’s primary support for this argument is one line in the 2014 Final Registration Decision citing FIFRA’s conditional registration provision.  But this stray line appears to be a typographical error.”

NRDC also put forward the argument that EPA improperly sought to impose conditions on its 2014 registration decision, which is contrary to the data requirement under the unconditional registration standard.  The court explained that a mere request by EPA to submit additional data when reviewing a registration application under the unconditional standard does not make it conditional as long as the additional data is not inherent to the registration decision.

NFFC made a similar argument concerning the 2017 registration decision.  NFFC argued that EPA improperly applied the unconditional registration standard for a new use of Enlist Duo instead of using the conditional standard.  The court, as did EPA, found that this did not really matter because the unconditional registration standard is stricter than the conditional one and termed this error “harmless.”  The court explained that the conditional registration standard should be interpreted “as limiting the scope of new evidence EPA must consider in making its registration decision” unlike the unconditional standard which requires a new analysis of all available data.

Both petitioners also claimed that there was lack of substantial evidence that 1) monarch butterflies would not be injured due to the increased use of 2,4-D on milkweed in target fields; 2) the use of Enlist Duo would not contribute to the increased use of glyphosate over the long-haul; 3) the 2,4-D in Enlist Duo was considered less volatile than the types of 2,4D found in other chemical products; and 4) the potential synergistic effect of mixing Enlist Duo with glufosinate was irrelevant.

The court rebutted the last three arguments.  First, the court considered that there was no risk of unreasonable environmental impact attached to the increased use of Enlist Duo, because of the pervasiveness of glyphosate on corn, soybean and cotton crops even long before the registration of Enlist Duo in 2014.  Second, the court found that EPA consulted data and studies credible enough to ascertain the very low degree of volatility in Enlist Duo.  Third and lastly, the court rejected the argument that EPA should have taken into consideration the potential synergistic of blending Enlist Duo with glufosinate when reviewing the Enlist Duo new use application.  The court considered this argument to be irrelevant because it was illegal at the moment to mix these products together.

With regard to the argument that the monarch butterfly species and their habitats were at-risk of being injured from the increased use of 2,4-D in Enlist Duo, the court sided with petitioners, stating that EPA had not provided sufficient evidence that monarch butterflies would not be adversely impacted by the destruction of milkweed on target fields.  The court considered that the argument put forward by EPA that “farmers will control the same amount of milkweed on their crop fields through the use of herbicides or other means and at the same crop growth stages, with or without Enlist Duo” was not acceptable.

Consequently, on July 22, 2020, the U.S. Court of Appeals for the Ninth Circuit granted in part and in denied in part Petitioners’ petition for review and remanded EPA’s registration decision without vacatur so that EPA could revise its analysis relating to monarch butterflies and its habitat protection.

 

This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.