US Ninth Circuit denies request to reconsider Enlist Duo lawsuit

15:01 PM | December 4, 2020 | J R Pegg

The US Court of Appeals for the Ninth Circuit last week rejected a bid by environmentalists to reconsider their challenge of the EPA’s registration of Corteva Agriscience’s Enlist Duo (glyphosate + 2,4-D choline) herbicide, effectively ending the six-year legal dispute.

The decision is a major win for Corteva, farm groups and the EPA, which urged the court not to rehear the litigation and called the request for further review baseless.
Enlist Duo has been developed for use on maize and soybeans genetically modified to tolerate the herbicides.

Sprouting controversy

The controversy began in late 2014 when the EPA registered Enlist Duo for use on GM maize and soybeans in six states.

A coalition of environmentalists led by the Natural Resources Defense Council and the Center for Food Safety quickly filed suit, alleging that the EPA had failed to fully assess the human health impacts of the two active ingredients under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The groups argued that the EPA had ignored its obligations to ensure that legal uses of the herbicide had not posed harm to species protected by the Endangered Species Act (ESA).

The EPA amended its registration in the spring of 2015 to include an additional nine states and contested the lawsuit. However, it changed course in November 2015, after discovering information on possible “synergistic weed control properties” within a Dow patent application.

The discovery prompted the Ninth Circuit to remand the registration back to the EPA in January 2016, allowing Enlist Duo to stay on the market while the Agency considered new data about possible synergistic effects of the two ais on non-target plants.

In January 2017, the EPA completed that review, concluding that existing buffers and mitigation measures were sufficient to protect endangered plants. It issued a new conditional registration that expanded approval of Enlist maize and soybeans to 34 states and added Enlist cotton to the label.

The environmental groups filed a new complaint with the Ninth Circuit, again arguing that the EPA had failed to fully review the impacts of the herbicide on the monarch butterfly, besides ignoring evidence of human health concerns from expanded use of 2,4-D and violating the ESA.

In July, the Ninth Circuit panel rejected the bulk of the allegations bar the claim that the agency’s FIFRA review of the herbicide’s impact on monarch butterflies had fallen short – notably the consideration of the potential harms from the destruction of milkweed.

Minor error, remand only

In a 2-1 ruling, the court concluded that the error was minor and opted to remand the registration back to the Agency to revise its assessment of the potential harm to monarch butterflies.

The majority found that the petitioners had failed to cogently argue their claims on human health, resulting in rejection of their claim that the EPA had failed to consider the possibility of Enlist Duo increasing the use of glyphosate over time. It also denied the allegation that the Agency had failed to adequately consider the volatility of 2,4-D, even though its evaluation “probably could have been better.”

“But it is not our role to second-guess EPA’s conclusion,” US Circuit Court Judge Ryan Nelson wrote for the majority. “Moreover, there is no evidence in the record that its conclusion was wrong.”

The court tossed out all the claims relating to violation of the ESA, observing that the EPA had “applied the correct legal standard and supported its conclusions” when it considered the risks to species.

“The EPA did what the ESA required it to do: assess risks to determine whether the exposure of protected species and critical habitat to potentially harmful chemicals would have any possible effect,” Nelson explained.

The dissenting judge, however, argued that the EPA had violated the ESA by failing to use the best available data and concluding the registrations should have been vacated.

The Center for Food Safety and its allies in September cited the dissent in their request for a rehearing of the case, arguing that the majority decision ran counter to legal precedent and ignored the EPA’s obligations under the ESA.

The ruling “raises questions of exceptional importance,” the groups said in their request seeking further review of the litigation. “The decision allows over 500 endangered species spanning nearly 200 million acres to be exposed to a toxic pesticide without any Endangered Species Act consultation.”

The court was unswayed. Two of the three judges on the original panel rejected the call for a rehearing and the full court declined to weigh in on the dispute.The ruling leaves the environmentalist groups with only one legal lifeline – the US Supreme Court – and the case poses little controversy that would likely prompt the nation’s top court to intervene.