August 11, 2020
It was a different day. Same court, though. Same petitioners, too, and the same respondent once again giving arguments over a herbicide.
On June 3, the U.S. Courts for the Ninth Circuit sided with the arguments brought by a group led by the National Family Farm Coalition, or NFFC, which sued EPA to vacate the federal registrations for the dicamba-based products, Xtendimax, FeXapan, and Engenia. The result left the future of the dicamba technology, and the many U.S. growers who've adopted it to control costly weeds, in the lurch.
On July 22, the same court rejected three of the four complaints the NFFC brought in its suit against the same EPA. The Enlist herbicide and Dow Agriscience, or the company now known as Corteva, were the topic. There was a difference this time.
In the dicamba case, the court said, basically, the EPA failed to handle correctly the registrations. In the opinions of people much smarter than me, science-based data shows EPA handled the dicamba registrations correctly within each registration's timetable. Over the last five years, dicamba has received negative attention in and outside the ag community, more attention than the 2,4-D in Enlist. Did dicamba's image problem stir legal emotions? Was it a difference in political ideology on the panel that heard the Enlist case? That panel said EPA handled the Enlist registration correctly – for the most part.
NFFC, along with co-petitioners Family Farm Defenders, Beyond Pesticides, Center for Biological Diversity, Center for Food Safety, and the Pesticide Action Network North America argued EPA lacked substantial evidence for its 2014, 2015, and 2017 registration decisions for four reasons. Here are the reasons, and what the court's panel said about them:
The panel agreed with the petitioners that EPA failed to properly assess harm to monarch butterflies from increased 2,4-D use on milkweed in target fields and concluded that EPA’s failure to do so meant that its decision was lacking in substantial evidence on the issue.
The panel rejected the argument EPA failed to consider Enlist Duo would increase glyphosate use over time. Substantial evidence supported EPA’s conclusion that neither the initial 2014 registration of Enlist Duo nor the subsequent approvals will increase overall use of glyphosate.
The panel rejected the petitioners’ contention that EPA failed to properly consider 2,4-D’s volatility and held that EPA reasonably relied on studies to support its conclusion that the volatility of 2,4-D choline salt will not cause unreasonable adverse effects on the environment.
The panel rejected the petitioners’ contention that EPA should have accounted for the potential synergistic effect of mixing Enlist Duo with glufosinate. The panel held that this concern was speculative. EPA has stated that Enlist Duo cannot be tank-mixed with any product that has not been tested, approved and listed on the website EnlistTankMix.com. No product containing glufosinate is listed on that website. It is unlawful to mix Enlist Duo with glufosinate.
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