March 1, 2023
At a Glance
- Activist groups are now doing things through the court system.
The world of pesticide registration and regulation has forever changed, and the director of the National Agricultural Law Center says don’t expect to go back to the way it used to be.
Speaking at the annual meeting of Southern Cotton Growers/Southeastern Cotton Ginners Association Jan. 21 at the Marriott Myrtle Beach Grand Dunes, Harrison Pittman said the process to register a new product and maintain registration for existing products is now more difficult, time consuming and arduous.
“Ten to 15 years ago in some of the presentations I would give I would use the term ‘regulation through litigation.’ I would say look at what these groups are starting to do, they are filing legal actions very creatively, very strategically in different places throughout the ag industry, not just with pesticides, and ultimately, they are forcing EPA to regulate in a different way,” Pittman told the cotton farmers and ginners.
“They are doing things through the court system that couldn’t be accomplished through Congress and couldn’t be accomplished through typical comments and rulemaking. That’s all come to fruition. That’s been a trend for 10 to 15 years.”
The National Agricultural Law Center, based at the University of Arkansas in Fayetteville, is a federally- funded, nonpartisan legal research and information center that serves as the nation’s leading source of agricultural law research and information. It was established in 1987.
Pittman said the court of choice for many activist groups is the United States Court of Appeals for the Ninth Circuit in San Francisco, with a jurisdiction of the western United States. He said the 2020 decision by the Ninth Circuit vacating dicamba is the “flavor of what we can expect in the future.”
On June 3, 2020, a three-judge panel of the Ninth Circuit vacated the federal registration of three dicamba-based herbicides. The decision came in a lawsuit filed by a coalition of environmental groups in 2019 that challenged the registration the 2018 EPA registrations of the dicamba products.
Pittman said when the 2020 decision was made by the Ninth Circuit to vacate the registration of dicamba, Arizona was the only state in the court’s jurisdiction that the decision could even apply to. “By the time that decision was issued, the cutoff date had already passed in Arizona. That’s a decision that automatically became applicable across the country.”
Pittman said the next dicamba case will also go to the Ninth Circuit which is where most of the activist lawsuits circulate. “The reason for that is the way that FIFRA (Federal Insecticide, Fungicide, and Rodenticide Act) is written, it allows where a party can challenge a registration. “They (activist groups) can choose what circuit they go to. Obviously, they will pick one that is the highest opportunity for success, and that’s the Ninth Circuit.”
In addition to litigation pressure, Pittman said pesticides face activist pressure from the registration process itself. He said this pressure primarily comes from the Endangered Species Act. Pittman cited the Monarch Butterfly as an example. While the Monarch Butterfly is not currently listed under the Endangered Species Act, many environmental activist groups believe it should be added to the list.
“The real target is glyphosate,” Pittman said. “That’s what the whole thing is about. The idea is if they can get the Monarch Butterfly listed, for them it would be successful because for them it makes it easier to say that products like glyphosate destroy the food habitat which is primarily milkweed. Their goal is to attack the technology.”
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