With a decision that’s still reverberating through farm country, the U.S. Court of Appeals for the Ninth Circuit vacated three over-the-top dicamba registrations: Engenia, FeXapan and XtendiMax. Now, plaintiffs have set their sights on Enlist Duo herbicide, featuring 2,4-D choline and glyphosate.
The lawsuit was brought forward by the National Family Farm Coalition and the Natural Resources Defense Council—the same plaintiffs in the recent dicamba case. Plaintiffs are suing Scott Pruitt, former EPA administrator, and list Dow AgroSciences (now Corteva Agriscience) as respondents-intervenor.
“The Enlist Duo case appears to focus more on the Endangered Species Act,” says Richard Gupton, senior vice president, public policy and counsel for the Ag Retailers Association (ARA). “The judges involved in this case differ from the dicamba case so ARA is hopeful there will not be a repeat of the immediate vacatur decision.”
EPA did not provide a comment on the case as the agency does not remark on pending litigation.
Corteva Agriscience provided the following statement to AgWeb: “The Enlist Weed Control System is an important tool for farmers, and Enlist Duo provides critical weed control with reduced potential for drift and near-zero volatility. We strongly disagree with the petitioners in the case brought against the U.S. EPA in the Court of Appeals for the Ninth Circuit regarding the registration of Enlist Duo.”
Basic information about the case
While there are similarities to the case against dicamba, they’re not entirely the same. Here are the arguments listed in the public filing:
- EPA violated the Endangered Species Act (ESA).
- Federal agencies must consult with expert wildlife agencies before taking any action (such as approving of a crop protection product) that might have any effect on any ESA-protected species or critical habitat.
- EPA violated the ESA’s consultation mandates.
- EPA’s roles under FIFRA and ESA are very different.
- EPA’s application of FIFRA-based thresholds to determine whether to consult under ESA violates the ESA.
- Records show Enlist Duo ‘may affect’ hundreds of endangered species, requiring consultation.
- EPA unlawfully constricted the registration’s ‘action area.’
- EPA’s conclusion that Enlist Duo will have ‘no effect’ even on protected species within sprayed fields was unlawful.
- EPA’s species-specific analyses violated the ESA. Whooping Crane and Indiana Bat are among those threatened.
- EPA failed to use the best scientific and commercial data available. The agency’s exposure handbook is an inappropriate data source for risks to ESA-protected species.
- EPA violated the ESA by failing to consult the expert agencies about critical habitat.
- EPA applied the wrong standard to determine if consulting on habitat is necessary.
- EPA unlawfully excluded from consideration critical habitats except those containing sprayed field occupied by endangered or listed species.
- EPA failed to properly assess effects on critical habitats even where listed species occupy sprayed fields.
- EPA violated the Federal Insecticides, Fungicide, and Rodenticide Act (FIFRA).
- EPA applied the wrong standard and failed to make statutorily required filings.
- EPA failed to ascertain that volatilization of 2,4-D from Enlist Duo would not have unreasonable adverse effect on the environment.
- EPA failed to consider synergistic effects of mixing Enlist duo with glufosinate.
- The Court should vacate the registration.
“In approving Enlist Duo for spraying on millions of acres across much of the United States, EPA violated both the ESA and FIFRA in ways that risk harm to human health, endangered species and the environment,” plaintiffs allege in court documents. “These ESA and FIFRA violations compel vacatur to protect health and the environment.”
Does dicamba set a dangerous precedent?
In light of the dicamba decision, some are wondering what this means for future pesticide products and products currently on the market, such as Enlist Duo.
“ARA is very concerned with the bad precedent the Ninth Circuit Court decision and order [regarding the three dicamba registrations] will have on future EPA registrations related to pesticide products, including Enlist Duo,” Gupton says. “The federal court is imposing their decision related to the science and data in place of the regulator and industry. … The judges in the Ninth Circuit Court, who have no scientific and agronomic experience or background, substituted their judgment for that of EPA’s regulatory and industry experts.
“If these lawsuits continue with poorly based decisions, they will be a deterrent to manufacturers to invest in newer pesticide and seed technologies. The industry would be required to revert back to older approved pesticide products and deal with the possibility of increased weed resistance as they have become less effected by the older products,” he continues.
This lays out a roadmap that requires the EPA to scrutinize applications for new products more vigorously than it did with the three dicamba products, adds Todd Janzen, president of Janzen Agricultural Law, LLC. “So, it probably will make it a bit harder to bring more dicamba products forward.”
The dicamba vacatur brought up the issue of the social environment for the ag community, suggesting the herbicide had ‘torn apart’ the community. A new layer in an already complex registration system.
“Now that there is this precedent from the Ninth Circuit, it is likely that will be something that EPA in some way considers going forward when making these kind of registrations,” says Brigit Rollins, staff attorney with the National Agricultural Law Center.
With more eyes on EPA and chemical companies than ever before, one thing is for certain: nothing is certain.
“Anytime you use a product like a pesticide, it’s a high-risk product because of by the nature of it, it’s dangerous,” says Kristine Tidgren, director of the Center for Agricultural Law and Taxation at Iowa State University. “But the alternative is the inability to raise product [such as crops] that is necessary. So, there’s just a lot of tradeoffs and it’s a difficult decision [for regulators]. We’ll just have to wait and see.”
Read more about the recent dicamba Court mandate: