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Ninth Circuit releases opinion on Enlist Duo®
Story Date: 7/23/2020
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Source: CROPLIFE AMERICA, 7/22/20
Earlier today, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit released their opinion on Corteva’s Enlist Duo®. Here are some of the details contained in the opinion:
• The court noted that EPA fully complied with the ESA and substantially complied with FIFRA.
• One judge did dissent from the court’s rejection of the ESA claims, arguing that EPA violated both FIFRA and the ESA, and calling for the registration to be vacated.
• The court rejected most of the petitioners’ FIFRA arguments. They did, however, find that EPA violated FIFRA by failing to properly evaluate harm to monarch butterflies even under FIFRA’s deferential substantial evidence standard.
• The court remanded, but did not vacate, the registrations because the court does not consider EPA’s error in not properly considering harm to monarch butterflies to be “serious.” On remand, the court has ordered EPA to address evidence about harm to butterflies and whether the registration of Enlist Duo® will lead to unreasonable adverse effects on the environment.
Growers may continue to use Enlist Duo® while EPA addresses the Ninth Circuit’s concern. This result stems from petitions challenging EPA’s 2017 decision to add a new use for Enlist Duo® and EPA’s affirmation of previous registrations of the herbicide.
Corteva’s Holding Statement:
Corteva is pleased with the Ninth Circuit decision to reject petitioners’ attempts to vacate the registration of Enlist Duo® herbicide. The registration of Enlist Duo® remains in place and this leading weed control product can continue to be sold and used by farmers.
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, which provides exceptional weed control in corn, soybeans and cotton with near-zero volatility, reduced potential for physical drift and improved handling characteristics.
CLA’s Holding Statement:
The Ninth Circuit’s opinion on Enlist Duo® herbicide is a win for farmers, a win for science, and a win for the career scientists at U.S. EPA-OPP whose job it is to ensure the appropriate use of pesticides. The Court took the weight of the EPA’s scientific information into consideration, finding that EPA fully complied with the Endangered Species Act and substantially complied with FIFRA, our nation’s pesticide law. Where the Court did find EPA had not fully complied, the Court’s decision to return the question to EPA reflects a deference, not always seen, to the federal agency charged with protecting human health and the environment.
CropLife America continues to believe that decisions on pesticide approval and use must rely upon the expertise of scientists using available scientific data. CLA has long sought an approach to endangered species review of pesticide products that improves coordination amongst key government agencies, enhances protection of threatened and endangered species, and allows farmers and other pesticide professionals to use our products without undue restrictions. We look forward to working with EPA, and other interested stakeholders, as the agency works to address the questions raised within this decision.
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