July 28, 2020
Last week, two judges of the 9th Circuit ruled in favor of keeping Corteva’s Enlist Duo, an herbicide designed to kill weeds on corn, soybean and cotton fields, on the market.
Enlist Duo combines two chemicals, 2,4-D and glyphosate. The case came about on a petition for review of an order of the EPA.
That is a victory for agriculture, and in so many cases, agriculture wins or loses based on the judges that make these decisions. That’s why I took a closer look at the three judges on the case.
Here come the judges
Judges N. Randy Smith, Paul J. Watford and Ryan D. Nelson reviewed the case. Judge Nelson, a President Trump nominee, is from Idaho Falls, Idaho. Judge N. Randy Smith is from Pocatello, Idaho and former chairman of the Idaho Republican party.
The third judge, and dissent from the Enlist Duo decision, was Judge Watford, a President Obama appointee.
The butterfly effect
The lead petitioner in the case was the National Family Farm Coalition (NFFC) but it was joined by The Center for Food Safety in Washington, DC. These groups were concerned that EPA failed to protect the monarch butterfly. It is alleged that the product kills the farm field milkweed plant. This milkweed plant, it is claimed, is “indispensable” for the butterfly’s reproduction.
The Center for Food Safety claims the monarch butterfly is under consideration for the Endangered Species Act (ESA). Two of the judges believed EPA’s approval was lawful and allowed the product to stay on the market. The petitioners including the Center for Food Safety believes it was wrong to not seek the guidance of expert agencies’ views on Enlist Duo’s effects on over 500 plant and animal species protected under the ESA.
Enlist Duo is marketed as a quick fix for superweeds.
Petitioners claim that continued use of Roundup (glyphosate) on crops has resulted in glyphosate-resistant superweeds. The plaintiff groups in this case are all known opponents to commercial agriculture: Center for Biological Diversity, Beyond Pesticides, Pesticide Action Network North America, and Family Farm Defenders. Legal counsel for this group was The Center for Food Safety.
More weed control options
This decision is critical for agriculture because U.S. farmers will continue using Corteva’s herbicide. The petitioners were hoping to vacate the registration of the product the same way environmentalists won out when a different group of judges vacated the registration of dicamba.
This three-judge panel’s denial is monumental.
We have not heard the last of the dicamba situation nor do I expect the decision on July 22 to be the last we will hear about the Enlist Duo decision. The six environmental groups who filed this legal challenge in 2017 claim they will be reviewing their legal options.
This might include a full court or en banc hearing to review the decision by Judges Smith and Nelson.
Judge Nelson technically denied the petitioner’s request and did remand back to EPA. The key item is that he did so without vacatur (to set aside judgment), but he does want EPA to address evidence concerning harm to the monarch butterfly.
In the 69-page opinion it is interesting to read Circuit Judge Ryan Nelson’s short concurring opinion. He undertakes a discussion as to whether or not the petitioners should even be in court. He is concerned as to whether venue and standing is proper.
“In my view, the petition for review should be dismissed,” he states.
Judge Nelson stated, “ I therefore believe that future [court] panels should closely scrutinize both venue and Article III standing in FIFRA cases to ensure that both requirements are met.”
This is an issue not only for the Enlist Duo case but one that needs to be examined more intensely in all cases brought against agricultural products.
The opinions of the author are not necessarily those of Farm Futures or Farm Progress.
About the Author(s)
Ag Lawyer/Blogger, Olsson Frank Weeda Terman Matz PC
Gary Baise is an Illinois farmer and trial attorney at the law firm Olsson Frank Weeda Terman Matz PC. He also serves as outside General Counsel for several national agriculture organizations, including Agricultural Retailers Association and National Sorghum Producers. Baise organized President Trump’s agricultural team of advisers. He was the first Chief of Staff to the first U.S. Environmental Protection Agency Administrator. He owns a family farm in Jacksonville, Ill.
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