Several legal issues that affect agriculture have been brought to court in 2020. During the new regulations made for the 2021-2025 dicamba label, a new Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) policy change could affect not only dicamba but all pesticides that are registered under FIFRA. Cases made against glyphosate, Enlist Duo, and Chlorpyrifos have also raised concerns for users of these products.

During a National Agricultural Law Center webinar, Brigit Rollins and Harrison Pittman discussed the top ten legal issues affecting agriculture over this year. Rollins, staff attorney at the National Agricultural Law Center, addressed the FIFRA policy change and pesticide lawsuits and regulations in 2020.

FIFRA policy change

A footnote made in the new registration decision for dicamba included a significant FIFRA policy change.

"The change is significant because it not only affects dicamba-based pesticides, but it would affect all pesticides that get registered under FIFRA," Rollins said. "In this memo accompanying the dicamba registration, there was a footnote that alters EPA's policy on FIFRA section 24(c) permits. These are also known as special local needs permits."

FIFRA section 24(c) allows states to alter use requirements for federally registered pesticides, but to do so, they need to apply to EPA for a local needs permit.

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"This permit allows states to add a 'use requirement' just for that state," she said. "Say a pesticide is registered for use on certain crops, and the state wants to expand the crops that the pesticide can be used on. They can apply for a FIFRA section 24(c) permit.

"Typically, these 24(c) permits are used to broaden pesticide use. However, in the past few years, there's been a trend of states using those permits to implement application cutoff dates for dicamba as well. In the past, there was not a national cutoff date included in those labels. Instead, states applied for FIFRA 24(c) permits if they wanted to impose a cutoff date."

However, according to Rollins, EPA will no longer allow states to use these 24(c) permits to restrict use beyond what's given in the federal label. This applies not only to dicamba but to all pesticides registered under FIFRA.

"Where does this leave our states? According to EPA, they can still regulate use under FIFRA section 24(a), which says states may regulate the use of pesticides so long as they do not violate FIFRA to do so," Rollins said. "However, it's uncertain what the boundaries of section 24(a) are, especially if states wanted to impose a cutoff date. Right now, it is unclear what the effect of this policy change will be."

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Glyphosate cases

Lawsuits surrounding Roundup have been going on over the last few years. Currently, Bayer is still in negotiations to try to settle the multiple Roundup-related lawsuits that have been brought to court.

"The federal court concluded in 2020 that glyphosate will not be required to bear Proposition 65 labels, which is a California statute that requires certain products to bear a label warning the consumer that the product may cause cancer," Rollins said.

The state of California tried to list glyphosate under Proposition 65, which would have included Roundup Ready products.

"There have been debates that maybe agricultural products sprayed with glyphosate might need to bear Proposition 65 labels," she said. "The Federal District Court did conclude that requiring those Proposition 65 labels for glyphosate products would be a First Amendment violation."

In January of 2020, the EPA issued an interim registration decision for glyphosate re-approving it for use and reaffirming that EPA does not hold the view that glyphosate causes cancer.

"There are two petitions for review of the decision the EPA issued, which are filed in the Ninth Circuit Court, so that is still ongoing too," she said.

Enlist Duo and Chlorpyrifos

Even though the Ninth Circuit vacated the registration for dicamba, it upheld the registration for Enlist Duo.

"In this case on Enlist Duo, the case was challenging the 2016 registration under both FIFRA and the ESA," Rollins said. "There was a lot of overlap in the claims brought for Enlist Duo and dicamba, so it is interesting to see the court rule differently in these two cases."

The court rejected all the FIFRA claims raised, except for the claim that EPA failed to properly assess harm to the Monarch butterfly, which is up for consideration to be listed under the Endangered Species Act.

"The decision on whether the Monarch butterfly is an endangered species is up to the Fish and Wildlife Service who are to make their decision before the end of this year," she said. "However, the court concluded that EPA failed to fully consider under FIFRA whether registering Enlist Duo would have an adverse impact on Monarch butterflies. The court sent the decision back to EPA for further assessment on the impact to Monarchs but kept the registration in place meaning that Enlist Duo will remain registered for use while EPA completes this assessment."

Recently, two cases have been filed in California against Corteva, alleging that exposure to Chlorpyrifos, manufactured by Corteva, has harmed the plaintiff's children. The claims include negligence, failure to warn, and design defects.

"The claims here are similar to some of the claims that were raised in the Bader Farms dicamba case," Rollins said. "In these cases, however, they also brought claims against the city where the plaintiff resides, alleging that the city had failed to provide 'wholesome, potable' drinking water. They are saying that Chlorpyrifos made its way into the city's water supply, which was another way their children were exposed. This too is an ongoing case, which we will most likely be hearing more about in 2021."