Some of the same environmental groups that successfully challenged the registration of three dicamba formulations have filed a complaint before the U.S. Ninth Circuit Court of Appeals against Enlist Duo herbicide.
In their court filing, the groups, led by the National Family Farm Coalition, argues the Environmental Protection Agency’s decision to register Enlist Duo violates both the Endangered Species Act and the Federal Insecticide, Fungicide and Rodenticide Act. (Read the full complaint here.)
Enlist Duo is a premix of 2,4-D choline and glyphosate.
Named as respondents are Dow AgroSciences, which is now Corteva Agriscience, and the EPA Agency. This is the same court in San Francisco that vacated registrations of XtendiMax, Engenia and FeXapan dicamba formulations in early June.
What are the arguments?
According to coalition, EPA violated the ESA by failing to consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service — the two agencies responsible for administering the ESA —on the effects that the final registration decision would have on endangered species. The coalition also argues that AEPA violated FIFRA by applying the wrong legal standard for the kind of registration that it used to register Enlist Duo and by failing to make statutorily required findings.
The FIFRA standard differs from the ESA because FIFRA requires the EPA to weight all costs and benefits when registering a pesticide to determine if there will be unreasonable adverse effects. The ESA prohibits such cost-benefit reviews.
In addition, the coalition argues that the EPA issued a conditional registration for Enlist Duo in 2017, although the agency applied standards for unconditional registrations.
A conditional registration is used to register a new use of an already registered pesticide and requires EPA to find that
“(i) the applicant has submitted satisfactory data pertaining to the proposed additional use, and
(ii) amending the registration in the manner proposed by the applicant would not significantly increase the risk of any unreasonable adverse effect on the environment.”
EPA would still have violated FIFRA because the final registration was not supported by substantial evidence.
When EPA issues an order under FIFRA, it must support the order with “substantial evidence.” The coalition argues that the agency failed to support its conclusion that 2,4-D volatilization from Enlist Duo would not unreasonably affect the environment with substantial evidence because the study EPA based that conclusion on was “deficient.”
If the Ninth Circuit rules in favor of the plaintiffs in the Enlist Duo litigation, it could result in a decision that instructs EPA to apply the ESA “may affect” standard whenever it registers a pesticide under FIFRA.
Currently, EPA applies the FIFRA “unreasonable adverse effects on the environment standard” when determining whether to engage in ESA consultation over a pesticide registration. This means that EPA will only perform ESA consultation if it concludes that registration of a pesticide will result in unreasonable adverse effects to a listed species after weighing the costs and benefits of registering the pesticide.
This is a higher threshold than the ESA standard, which would require EPA to consult on a pesticide registration any time that registration “may affect” a listed species or designated critical habitat.
If the Ninth Circuit decides that the ESA standard is what should have been applied in this case, it is possible that EPA will have to apply the ESA standard to all pesticide registration decisions going forward. This could result in pesticide registrations taking longer, and involving more limitations to protect listed species.
The current litigation involving dicamba-based pesticides in the Ninth Circuit could have an impact on the FIFRA issue raised by the coalition.
All the plaintiffs in the Enlist Duo litigation have asked the court to vacate the registration of Enlist Duo. Should the court find in favor of the plaintiffs and vacate the registration, it would likely result in Enlist Duo no longer being registered under FIFRA.
Pesticides not registered under FIFRA may not be sold or distributed, which would throw use of Enlist Duo into question. It is also possible that the Enlist Duo litigation could effect how EPA registers pesticides going forward, depending on how the court rules.
The National Agricultural Law Center, a unit of the University of Arkansas, contributed information for this article.