{"id":27474,"date":"2020-08-11T00:01:56","date_gmt":"2020-08-11T04:01:56","guid":{"rendered":"http:\/\/beyondpesticides.org\/dailynewsblog\/?p=27474"},"modified":"2020-08-12T12:34:50","modified_gmt":"2020-08-12T16:34:50","slug":"court-decision-highlights-systemic-failure-of-federal-pesticide-law-to-protect-health-and-the-environment-despite-a-silver-lining-and-a-must-read-powerful-dissenting-opinion","status":"publish","type":"post","link":"https:\/\/beyondpesticides.org\/dailynewsblog\/2020\/08\/court-decision-highlights-systemic-failure-of-federal-pesticide-law-to-protect-health-and-the-environment-despite-a-silver-lining-and-a-must-read-powerful-dissenting-opinion\/","title":{"rendered":"Court Decision Highlights Systemic Failure of Federal Pesticide Law to Protect Health and the Environment, Despite a Silver Lining and a Must-Read, Powerful Dissenting Opinion"},"content":{"rendered":"
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U.S. Circuit Judge Paul J. Watford, in a must-read dissent: “Because courts in our circuit must now accept that fundamentally flawed data as the \u2018best\u2019 scientific data available, the agency will have no incentive to implement the scientific methods necessary to obtain reliable data.”<\/p><\/div>\n

(Beyond Pesticides<\/em>, August 11, 2020)\u00a0Petitioners who mounted a legal challenge to the Environmental Protection Agency\u2019s (EPA\u2019s) registration of Enlist Duo, a relatively new and highly toxic pesticide product, recently learned of a mixed decision from the U.S. Ninth Circuit Court of Appeals<\/a> in the case. The good news is that Judge Ryan D. Nelson, writing the opinion for the court,<\/a> found that EPA, in registering the herbicide Enlist Duo, had failed to protect monarch butterflies, which are under consideration as a threatened species under the Endangered Species Act (ESA). On the other and disturbing hand, the court concluded that EPA registration of the product was otherwise lawful \u2014 which means that this toxic compound will for now remain on the market. As one of the plaintiffs in the case<\/a>, Beyond Pesticides is adamant that this product should not be registered for use by EPA.<\/p>\n

George Kimbrell, Legal Director of Center for Food Safety and Lead Counsel for the plaintiffs, commented on the decision in the organization\u2019s July 22 press release<\/a> on the decision: \u201cThe panel majority’s unprecedented decision is contrary to controlling law and established science, and Center for Food Safety is analyzing all legal options, including seeking a full court rehearing.\u201d<\/p>\n

Enlist Duo is a highly toxic mixture of two herbicides, glyphosate<\/a> and 2,4-D<\/a> (2,4-Dichlorophenoxyacetic acid), as well as an unknown number of unlisted adjuvant ingredients. (The latter, 2,4-D, comprises roughly half of the notorious defoliant compound, Agent Orange<\/a>.) Beyond Pesticides lists both glyphosate and 2,4-D as \u201ctoxic\u201d in its Pesticide Gateway database<\/a>, and identifies both as causing or associated with a variety of human health harms: cancer, and reproductive, neurological, hepatic, renal, natal and developmental anomalies. In addition, glyphosate is an endocrine disruptor (ED), and 2,4-D is a probable ED.<\/p>\n

The herbicide also threatens harms to nontarget species<\/a>. Monarch butterfly populations have suffered<\/a> greatly from exposure to pesticides, including Enlist Duo. Monarch larvae, which reside and feed on milkweed plants, endure devastating impacts<\/a> from pesticide drift from nearby treated agricultural fields. A 2015 lawsuit brought by Beyond Pesticides and other petitioners<\/a> cited EPA\u2019s consistent failure to consult with the U.S. Fish and Wildlife Service (FWS) on impacts to endangered species, as it is statutorily required to do. That suit focused on impacts of Enlist Duo on two endangered species: the whooping crane and the Indiana bat.<\/p>\n

The combined herbicide was developed to be used on genetically engineered (GE), herbicide-tolerant crops, such as corn, soybeans, and cotton \u2014 the notion being that when applied, it would knock down broadleaf weeds, but not affect the GE crops. Enlist Duo was created in response to target weeds\u2019 development of resistance to glyphosate herbicides, most notably, Monsanto\u2019s (now Bayer\u2019s) Roundup, which has been used intensively during the past two decades. Dow Chemical rushed to offer Enlist Duo<\/a> as a quick fix to the problem, but independent scientists and USDA analysis predict that its use\u00a0will inevitably foster more weed resistance<\/a>.<\/p>\n

Plaintiffs in the case<\/a> included the National Family Farm Coalition<\/a>, Family Farm Defenders<\/a>, Beyond Pesticides<\/a>, Center for Biological Diversity<\/a>, Center for Food Safety<\/a>, and Pesticide Action Network North America<\/a>. The National Resources Defense Council<\/a> joined the suit as a petitioner. The lawsuit alleged that EPA\u2019s 2014, 2015, and 2017 registrations of Enlist Duo violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA). Suits were brought against each of EPA\u2019s registrations; the Ninth Circuit Court consolidated them into this single case that was adjudicated in late July 2020.<\/p>\n

EPA\u2019s 2014 registration of Enlist Duo was amended in 2015 and again in 2017, with resulting allowances for use on the three GE commodity crops deregulated in 34 states<\/a>. (Enlist Duo was originally manufactured by Dow Chemical, which in 2017 merged with DuPont to form DowDuPont \u2014 which in turn spun off the chemical and seed businesses into Corteva AgriScience.) Until the hearing of this case, no court had ever reviewed whether the registration of Enlist Duo met basic safety standards required by FIFRA and ESA. Plaintiffs\u2019 central arguments are: the compound is an existential threat to the monarch butterfly, and EPA has ignored, in its registration of the pesticide, compelling evidence that Enlist Duo represents serious threats to human health.<\/p>\n

Beyond Pesticides has often challenged EPA\u2019s failure to assess adequately the risks of this dual compound, through its reporting and its participation in litigation. In 2017, Beyond Pesticides reported<\/a> that although a \u201cnew process for handling ESA consultations was outlined in 2013, EPA continues to bring pesticides to market without adequate data on a chemical\u2019s adverse effects. EPA routinely disregards this requirement, and has been\u00a0sued numerous times<\/a>\u00a0for failing to ensure adequate protections for endangered species.\u201d It wrote in 2019 about EPA\u2019s ongoing failure<\/a> to assess potential synergistic effects of the compound, saying: \u201cIt does not appear that assessments, based on exposure to both glyphosate and 2,4-D choline, have been conducted to properly assess whether synergistic effects can occur in non-plant organisms.\u201d<\/p>\n

Despite the Ninth Circuit Court\u2019s decision not to vacate EPA registration of Enlist Duo, there may be potential silver linings in this decision. The court agreed \u2014 in opposition to the defendant\u2019s multiple challenges on timing of the petition and on standing \u2014 that plaintiffs’ filing was timely and that they had standing to bring the suit. (Having \u201cstanding\u201d in legal cases means that a petitioning individual or entity can demonstrate that it has a legal right or interest in bringing an action to challenge the constitutional validity of a law.) In addition, the court did, rather than assume EPA\u2019s claims on their face, actually explore the details of plaintiffs\u2019 arguments related to tank mixing of Enlist Duo with glufosinate<\/a>, and volatility of the compound and impacts on nontarget organisms.<\/p>\n

In addition, the dissenting opinion on the case is encouraging in its recognition of EPA\u2019s failings. In crafting that strong dissenting opinion, Judge Paul J. Watford wrote<\/a>: \u201cEPA also violated the Endangered Species Act by failing to use the best scientific data available to assess whether Enlist Duo will adversely affect threatened or endangered species. For that reason, I would vacate the 2014 and 2017 registrations under review. . . . The method [EPA] used to assess Enlist Duo\u2019s effects on listed species is scientifically unsound. . . . To evaluate the risks that Enlist Duo poses to listed species, EPA applied the \u2018risk quotient\u2019 method. . . . But as the National Academy of Sciences explained in a 2013 report \u2014 issued in response to EPA\u2019s own request for advice on the subject \u2014 the risk quotient method does not \u2018estimate risk\u2019 at all. . . . [The] National Research Council of the National Academies [said] \u2018It provides no information about the probability of an adverse effect\u2019 because single-point estimates do not account for the full range of possible exposure scenarios . . . [and] risk quotients may not even reflect the worst-case scenario. . . . The Academy concluded that risk quotients \u2018are not scientifically defensible for assessing the risks to listed species posed by pesticides or indeed for any application in which the desire is to base a decision on the probabilities of various possible outcomes.\u2019 . . . [The Academy] reiterated that EPA\u2019s current approach to risk assessments is \u2018not appropriate.\u2019 . . . EPA\u2019s use of the risk quotient method violated the Endangered Species Act, and the 2014 and 2017 registrations of Enlist Duo should be vacated as a result.\u201d<\/p>\n

In his dissent, Judge Watford also offered some cautionary criticism of the majority\u2019s ruling<\/a>: \u201cIn reaching this outcome, the majority has created a new rule with serious implications. Following today\u2019s decision, an agency may rely on data produced by a scientifically indefensible methodology so long as better data, produced by a methodology that is<\/em> scientifically defensible, has not yet been generated. Because courts in our circuit must now accept that fundamentally flawed data as the \u2018best\u2019 scientific data available, the agency will have no incentive to implement the scientific methods necessary to obtain reliable data. That is not what Congress intended when it required EPA and other federal agencies to use the best scientific data available, and it is certainly not the outcome that our cases demand.\u201d<\/p>\n

The larger issue this case (and many others) demonstrate is that federal pesticide regulation \u2014 enabled primarily by FIFRA, ESA, the Food Quality Protection Act (FQPA), and the Federal Food, Drug, and Cosmetic Act (FFDCA) \u2014 and as it currently is enacted, is inadequate to the task of protecting human and ecosystem health. Multiple agencies bear some responsibility for regulation, though EPA is primary in this regard. EPA\u2019s registration of pesticides is characterized by:<\/p>\n