The U.S. 9th District Court of Appeals is again taking action that will impact how farmers operate this growing season. This is the same court that last month took dicamba off the market. The latest action involves Enlist Duo. The group filing the complaint was the same coalition of anti-GMO groups that was responsible for the dicamba decision.
This time, however, the three-judge panel ruled in favor of the EPA, and Enlist Duo will remain on the market. In the decision, the court kept the registration in place but said the EPA did not properly assess the possible impact on monarch butterflies and instructed them to reassess that risk.
“EPA’s error in failing to consider harm to monarch butterflies caused by killing target milkweed was not ‘serious,’” the court said, quoting a previous 9th Circuit opinion. “Moreover, given the technical nature of EPA’s error, EPA will ‘likely be able to offer better reasoning’ and ‘adopt the same rule on remand,’” the court said, again quoting a previous opinion.
Corteva, maker of the Enlist technology, was pleased with the court decision saying in a statement, “Corteva is confident in the sustainability and effectiveness of Enlist Duo and we are committed to helping farmers continue to realize the benefits of the Enlist Weed Control System.”
A significant portion of the soybean crop this year was planted as part of the Enlist program, and growers were counting on this technology for control of weeds this season.
The issue is the destruction of milkweed plants around targeted fields, a key food source for the butterfly. The EPA will now review this aspect of the product registration and it is possible future label restrictions may be imposed.
A coalition filed suit over Enlist Duo, largely alleging ESA violations. The groups in the coalition include the National Family Farm Coalition, Family Farm Defenders, Beyond Pesticides, Center for Biological Diversity, Center for Food Safety, and Pesticide Action Network North America. The Natural Resources Defense Council filed a separate petition focused on alleged FIFRA violations. The court rejected all the arguments put forth by the NFFC coalition and most of NRDC’s.
Other conclusions by the court:
“The panel rejected the argument that EPA failed to consider that Enlist Duo would increase the use of glyphosate over time.”
“The panel held that substantial evidence supported EPA’s conclusion that neither the initial 2014 registration of Enlist Duo — nor the subsequent approvals for new use — will increase the overall use of glyphosate.”
“The panel rejected petitioners’ contention that EPA failed to properly consider 2,4-D’s volatility — i.e., its tendency to evaporate into a gas and drift to non-target plants. The panel held that EPA reasonably relied on studies to support its conclusion that the volatility of 2,4-D choline salt will not cause … unreasonable adverse effects on the environment.”
“The panel rejected NFFC petitioners’ contention that EPA should have accounted for the potential synergistic effect” of mixing Enlist Duo with glyphosate. “The panel held that this concern was speculative.”