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Article: US appeals court wrestles with EPA's dicamba review

30 April 2020

This article is taken from IEG Policy platform dated 23/04/20.

The US Court of Appeals for the Ninth Circuit waded back into the debate over the safety of spraying the herbicide, dicamba, on Tuesday (April 21st).

The US Court of Appeals for the Ninth Circuit waded back into the debate over the safety of spraying the herbicide, dicamba, on Tuesday (April 21st). It heard oral arguments in a lawsuit brought by environmentalists keen to reverse the EPA's approval of the active ingredient.

The three-judge panel, which heard from the parties via videoconference, largely held off from pointed questioning of either side. But it did voice some scepticism that the EPA had adequately accounted for the environmental harm to non-target crops and taken the necessary steps to safeguard endangered species.

The controversy stretches back to November 2016 when the EPA issued a conditional registration for Bayer legacy company Monsanto's XtendiMax (dicamba + glyphosate) that allowed post-emergence use of the herbicide on genetically modified cotton and soybeans in 34 states. Problems with drift and damage to non-target crops across some 3.6 million acres (1.4 million ha) in the 2017 growing season prompted the EPA to adopt industry-recommended label changes that reclassified XtendiMax - and similar dicamba herbicide - as "restricted use" and impose additional training requirements.

Led by the Center for Food Safety (CFS), a coalition of environmental and farming groups filed suit in early 2017 challenging the original registration, but the Ninth Circuit panel dismissed the lawsuit after the EPA issued a revised registration for XtendiMax in November 2018.

The EPA says that the 2018 registration addressed concerns about off-target movement of the herbicide through additional label changes and mitigation measures, including limits on when the herbicide could be sprayed, restrictions on applications, additional training for applicators and buffers to protect endangered species.

But the plaintiffs were unconvinced and filed a new lawsuit that repeats the claims that the Agency had violated the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA). The EPA relied on inconclusive safety data and industry studies that were "deficient in numerous ways and failed to provide it with satisfactory information on dicamba drift in the real world", said CFS staff attorney Sylvia Wu. The Agency also provided "no evidence" that its new mitigation measures would ensure that use of dicamba complied with the FIFRA's standard not to cause "unreasonable adverse effects" on the environment, Ms Wu told the Court.

With regard to the ESA, the Agency used the wrong standard to avoid consultation with the federal wildlife agencies and imposed an "arbitrary" 57-ft (17.4 m) buffer that did little to protect listed species, according to CFS Legal Director George Kimbrell. "This case is not about one landowner applying pesticides in their yard," Mr Kimbrell said. "It is about 100 million acres [40.5 million ha], 34 states, two major crops and an increase of dicamba into the environment of 25 million lbs [11,340 tonnes] a year. EPA originally counted 587 endangered species in the action area, 216 critical habitats and yet it decided [the registration] could have absolutely no effect on any of those species whatsoever."

Complaints and buffers

Arguing for the EPA, Department of Justice (DoJ) attorney Sarah Buckley said that the case "is fundamentally about EPA's application of its scientific expertise to make a judgment call in the face of scientific uncertainty". The EPA fully considered the damage reports from the 2017 and 2018 growing season, Ms Buckley said, and confirmed that the benefits of the new registration outweighed the risks.

But Judge William Fletcher questioned the EPA's claim that the number of complaints about damage to non-target crops from dicamba may have been exaggerated, noting that state officials had said that the complaint numbers were likely too low.

Bar a Monsanto white paper indicating that complaints were overestimated, Ms Buckley was unable to point to any other source for the suggestion. "The only entity saying they are overreporting is Monsanto," Judge Fletcher said, adding that the record shows "huge amounts" of off-field damage and questioning EPA's assessment of the risks. "The studies may say one thing … but the real-world experience is quite to the contrary," he added.

Judge Margaret McKeown also questioned the EPA's argument that the revised label was sufficient to address concerns about the possible off-site movement of dicamba. "You are saying the label is designed with such specificity as to make sure there is not misuse," she said. "But there is a lot of evidence in the record that you can't follow the label, that as a practical consequence following the label is a non-sequitur."

On the ESA claims, DoJ attorney J Brett Grosko argued that the Court should defer to the EPA's expertise and said that the Agency had used "the best available science" to reach its conclusions about the potential harms to listed species and to set a 57-ft buffer.

But Judge Fletcher said that he has "trouble understanding why 57 feet is a magic number" as state officials and landowners have reported dicamba damage on non-target crops at least a quarter of a mile away from treated fields. "We know that a great deal of this dicamba is ending up off the field that has been treated," Judge Fletcher said, adding that there was "such strong evidence of both spray drift and volatility drift."

Vacate debate

Monsanto's attorney Richard Bress suggested that the plaintiffs had missed the legal deadline for filing the case and argued that the Court therefore lacked jurisdiction. But if the court does intervene, Mr Bress said that the judges should resist the call to vacate the registration.

"If this court were to vacate in the middle of planting season it would cause chaos for farmers, but it would also cause great risk to endangered species and the environment," Mr Bress said, prompting Judge McKeown to ask for a further explanation.

"The risk to endangered species is that farmers would scramble, and many would undoubtedly choose other pesticides to use in the middle of the growing season … that have not gone through comparable reviews under the ESA," Mr Bress replied. "They don't have the same buffer zones, they don't have the same conditions on use. So we would be trading a pesticide that we know what the effects are for ones where the same level of analysis has never been done. "

Mr Kimbrell closed with a rebuttal of that assessment, telling the Court that there "is absolutely no evidence" that pulling the pesticide from the market would be worse for the environment.

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