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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.