On March 20, 2020, two petitions for review were filed against the Environmental Protection Agency (“EPA”) challenging the agency’s decision to re-approve the chemical glyphosate. One petition was filed by Rural Coalition on behalf of the Center for Food Safety, and the other was filed by the Natural Resources Defense Council and Pesticide Action Network. Both are arguing that EPA’s decision to re-approve glyphosate violated the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), and the case filed by Rural Coalition also argues that EPA’s decision violated the Endangered Species Act (“ESA”). The petitions are the latest legal actions to be taken concerning the chemical glyphosate, which has come under fire for being potentially carcinogenic. Whatever the ultimate outcomes of these newest actions are, they could potentially affect whether glyphosate continues to be used, which would have a significant impact on agriculture.
Glyphosate is one of the most commonly used pesticides in the United States. It is the central component of Monsanto Company’s (“Monsanto”) Roundup weed killer, and has been approved by EPA for use on over 100 different crops. Glyphosate has long been considered non-carcinogenic and safe for use. However, in recent years thousands of plaintiffs have filed suit against Monsanto alleging that the company failed to warn users that glyphosate is carcinogenic. Most of the lawsuits cited a 2015 report published by the International Agency for Research on Cancer (“IRAC”) which concluded that glyphosate was a carcinogen. Of the three of these cases which have gone to trial, the juries have all returned verdicts in favor of the plaintiffs and awarded large amounts in damages. Combined, the three verdicts resulted in over $2 billion dollars. Since those verdicts were issued in 2019, Monsanto has been working with plaintiffs to attempt to settle the remaining cases.
Also spurred by the 2015 IRAC report, California added glyphosate to its Proposition 65 list of substances known to cause cancer. Although this is not a ban of the chemical, it does require that any products containing glyphosate must come with a warning that the product contains a known carcinogen. A lawsuit challenging California’s decision to list glyphosate under Proposition 65 is currently pending.
EPA’s Re-approval of Glyphosate
Amidst the on-going lawsuits involving the use of glyphosate, EPA has issued its decision to reapprove glyphosate for use, and reiterate its conclusion that the chemical does not cause cancer.
Under FIFRA, EPA must complete a review of each registered pesticide every fifteen years to determine whether the pesticide still meets the FIFRA standard for registration. To meet the FIFRA standard for registration, a pesticide must have no unreasonable adverse effects. EPA must make that decision based on scientific data showing that the pesticide does not cause unreasonable risks to human health or the environment when it is used according to the label.
On January 22, 2020, EPA issued an Interim Registration Review Decision for glyphosate as part of the pesticide’s review process. The decision is not EPA’s final review decision. However, during the review process, EPA has the power to issue interim registration decisions that allow for the continued registration of the pesticide and for some mitigation measures to be implemented to ensure that the pesticide does not cause adverse effects to human health or the environment. In its interim decision for glyphosate, EPA notes that although it is still consulting with the United States Fish and Wildlife Service (“FWS”) on its final review decision, it believes that the mitigation measures it proposes in the interim decision will protect endangered species.
New Petitions for Review
A petition for review is a legal action that formally asks an appellate tribunal to review and make changes to a decision from an administrative body. Such petitions can be used to ask a court to vacate an administrative order that the petitioner believes is unlawful. The petitions for review filed on March 20, 2020 both challenge the lawfulness of EPA’s Interim Registration Review Decision for glyphosate and ask the court to vacate the decision.
The plaintiffs in Nat. Res. Def. Council v. U.S. Envt’l Prot. Agency, No. 20-70787 (9th Cir. 2020) allege that the interim decision is an unlawful violation of FIFRA. According to the plaintiffs, the interim decision violates FIFRA because it lacks substantial evidence that glyphosate will not cause unreasonable adverse effects to human health or the environment. The plaintiffs in Rural Coal. v. U.S. Envt’l Prot. Agency, No. 20-70801 (9th Cir. 2020) allege that the interim decision violates both FIFRA and the ESA. The plaintiffs in this case make the same FIFRA arguments as the plaintiffs in Nat. Res. Def. Council v. U.S. Envt’l Prot. Agency. Additionally, the plaintiffs argue that the interim decision violates the ESA because EPA failed to consult with either FWS or the National Marine Fisheries Service to conclude that approving the interim decision would not harm any species listed under the ESA.
Both actions are still in early stages, with briefs from all parties not due for several months. However, the outcomes of these petitions could potentially affect the future of glyphosate use. If the plaintiffs in either action are successful in having EPA’s interim decision overturned, it would likely cause the glyphosate review process to take longer than anticipated, and could possibly result in glyphosate no longer being registered under FIFRA. However, if the plaintiffs are not successful, then it would likely be easier for EPA to issue its final review decision on glyphosate. For now, the interim decision stands.
To read the petition to review in Nat. Res. Def. Council v. U.S. Envt’l Prot. Agency, click here.
To read the petition to review in Rural Coal. v. U.S. Envt’l Prot. Agency, No. 20-70801 (9th Cir. 2020), click here.
To read the EPA Interim Registration Review Decision for glyphosate, click here.
For more National Agricultural Law Center resources on pesticides, click here.