Enlist Duo Can Stay on Market, Ninth Circuit Court Rules
July 22, 2020 The Ninth Circuit Court handed Corteva Agriscience and the agricultural industry a win on Wednesday by denying a petition to vacate the registration for Enlist Duo, its 2,4-D choline and glyphosate premix herbicide used in corn, soybean, and cotton fields.
The same plaintiffs who brought the dicamba lawsuit to the U.S. Court of Appeals for the Ninth Circuit, led by the National Family Farm Coalition, challenged that U.S. Environmental Protection Agency lacked substantial evidence for its registration decisions in 2014, 2015, and 2017. The plaintiffs charged that those decisions violate both the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA).
“We grant one petition in part as to FIFRA, deny the other petition as to both the ESA and FIFRA, and remand to the agency without vacatur,” Ryan D. Nelson, Circuit Judge, wrote in his opinion.
With respect to the remand without vacatur, the court ruled that EPA’s “error in failing to consider harm to monarch butterflies caused by killing target milkweed was not ‘serious.’” The panel remanded so that EPA can address the evidence concerning harm to monarch butterflies and whether the registration of Enlist Duo will lead to an unreasonable adverse effect on the environment.
“We expect and urge EPA to move promptly on remand,” the court stated. This does not impact registration, in the meantime.
“Today’s Ninth Circuit Court of Appeals decision correctly held that the EPA failed to protect Monarch butterflies in registering Dow’s toxic pesticide Enlist Duo. These iconic butterflies are in steep decline from the overuse of glyphosate-based pesticides like Enlist Duo, which kill off the farm field milkweed plants that are indispensable for the butterfly’s reproduction,” George Kimbrell, Legal Director for the Center for Food Safety and Lead Counsel in the case said. “Unfortunately, the Court erred in concluding that the EPA approval was otherwise lawful and allowing the pesticide to stay on the market.”
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