A coalition of environmental groups lead by the Center for Food Safety have asked a federal court in the District of Columbia to overturn the Environmental Protection Agency’s (“EPA”) decision to register the pesticides Enlist One and Enlist Duo for use through January 2029. In their lawsuit, which was originally filed in June 2023, the plaintiffs claim that EPA’s decision to approve Enlist One and Enlist Duo violates the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). The plaintiff’s recent motion for summary judgment outlines their arguments against EPA and asks the court to revoke the labels for both Enlist products, a move that would make both products unavailable for use.
Background
Both Enlist One and Enlist Duo are herbicide products manufactured and sold by Corteva Agriscience LLC (“Corteva”). Both products contain as an active ingredient the choline salt of 2,4-dichlogophenoxyacetic acid, otherwise known as 2,4-D. Enlist Duo also includes glyphosate as a second active ingredient. Enlist One and Enlist Duo have both been approved for use on 2,4-D resistant corn, soybean, and cotton crops in 34 states. Specifically, the Enlist products may be used any time before or after planting, but before crops have emerged, and may also be used on Enlist-resistant crops have they have emerged from the soil. Corteva markets Enlist products together with Enlist-resistant corn, soybean and cotton seeds as a weed control system. In general, Enlist One and Enlist Duo are used to control broadleaf weeds, and EPA has identified both products as “important tools” for addressing weed varieties that have grown resistant to other herbicides, including glyphosate-resistant Palmer amaranth.
EPA first registered Enlist Duo for use in six states in 2014 after the United States Department of Agriculture approved the use of 2,4-D resistant crop seeds. The following year, EPA amended the registration for Enlist Duo to expand its use into nine additional states. EPA amended the registration for Enlist Duo again in 2017 to expand its use to nineteen more states, in 2022, EPA approved Enlist Duo for use on Enlist-resistant corn, soybean, and cotton crops. EPA initially registered Enlist One in 2017 for a period of five years. The agency renewed Enlist One’s registration in 2022 when it renewed the registration for Enlist Duo. Both pesticides are currently approved for use until January 11, 2029.
FIFRA is the primary pesticide regulation statute in the United States. A pesticide may not be sold or distributed in the United States until EPA registers the pesticide for use under FIFRA. To register a pesticide, FIFRA requires EPA to determine that using the pesticide for its intended purpose will not cause “unreasonable adverse effects on the environment.” 7 U.S.C. § 136a(c)(5)(C). FIFRA defines “unreasonable adverse effects on the environment” as “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of the pesticide.” 7 U.S.C. § 136(bb). In other words, FIFRA requires EPA to register a pesticide for use only if the agency has determined that the costs of using the pesticide in its intended manner do not outweigh the benefits.
When EPA registered Enlist One and Enlist Duo for use in 2022, the agency concluded that one of the main benefits of using Enlist products was the products’ effectiveness against herbicide-resistant broadleaf weeds in cotton and soybean crops. On the other hand, EPA identified certain environmental risks such as potential harm to pollinators, pollinator host plants such as milkweed, and other wildlife species. To address those risks, EPA included additional application requirements on the Enlist labels to reduce the amount of 2,4-D that could travel off target via spray drift or runoff. Those measures included a 30-foot spray drift buffer and a requirement that Enlist applicators select mitigation measures from a “pick list” developed by EPA for the purpose of limiting pesticide exposure to wildlife. Each mitigation measure is assigned a point value, and to apply Enlist One or Enlist Duo, applicators will need to achieve four to six points of runoff mitigation depending on their location. To learn more about EPA’s mitigation “pick list” for herbicides, click here.
EPA finalized its most recent registration decision for Enlist One and Enlist Duo on January 11, 2022. Center for Food Safety along with other environmental groups filed a lawsuit to challenge the Enlist registrations in June 2023.
Current Lawsuit
The plaintiffs in Ctr. For Food Safety v. Envtl. Protection Agency, 1:23-cv-01633 (D. D.C. June 6, 2023) filed a motion for summary judgment with the court in late August. A party will file a motion of summary judgment when they believe that there are no disputes about the facts of the case and that it is appropriate for the judge to review the legal arguments and issue a ruling. Here, the plaintiffs argue that the 2022 registration decision for Enlist One and Enlist Duo violate FIFRA and ask the court to overturn the registration. Specifically, the plaintiffs argue that EPA did not satisfy FIFRA’s “unreasonable adverse effects on the environment” standard when registering Enlist One and Enlist Duo because EPA (1) understated or ignored important costs to the environment and human health; (2) overstated alleged benefits; and (3) improperly relied on ineffective mitigation.
First, the plaintiffs argue that EPA’s 2022 registration of Enlist One and Enlist Duo violate FIFRA because EPA failed to fully analyze the environmental and human health costs posed by use of Enlist products. According to the plaintiffs, when EPA drafted its 2022 registration decision, it failed to evaluate current usage data for Enlist products. Instead, EPA relied on Enlist use data from 2018 and 2019 which the plaintiffs claim was before the widespread adoption of Enlist products for use on Enlist-resistant crop seeds. Because EPA did not consider more current usage data, the plaintiffs argue that EPA did not appropriately analyze the amount of Enlist present in the environment and therefore did not fully examine the costs of approving the Enlist registration. Similarly, the plaintiffs argue that EPA failed to consider the future use of Enlist One and Enlist Duo which the plaintiffs claim will continue to increase during the seven-year registration period. Additionally, the plaintiffs claim that EPA failed to account for the costs of increased weed resistance that could occur as a result of increased use of Enlist products. Here, the plaintiffs argue that continued use of Enlist One and Enlist Duo will contribute to the development of weeds that are resistant to 2,4-D, dicamba – which, like 2,4-D, is a synthetic auxin herbicide – and glyphosate. The plaintiffs argue that because EPA did not consider the impacts that increased weed resistance to pesticide active ingredients, the agency failed to fully consider the costs of registering the Enlist products. Finally, the plaintiffs claim that EPA did not fully consider the human health impacts of the Enlist products, citing a 2015 study from the International Agency for Research on Cancer which concluded that glyphosate is “probably carcinogenic to humans” and recent studies suggesting that 2,4-D “can cause cancer.” By failing to address the human health impacts of Enlist One and Enlist Duo, the plaintiffs claim that EPA failed to adequately analyze the costs that registering the products.
Next, the plaintiffs argued that EPA overstated the benefits of using Enlist One and Enlist Duo. Specifically, the plaintiffs claim that EPA overstated the effectiveness of Enlist products on herbicide-resistant weeds because the agency failed to consider how the current use of Enlist products would contribute to future resistance. The plaintiffs claim that although EPA suggests using Enlist One and Enlist Duo with other pesticides or weed management tools to avoid contributing to the likelihood of increased herbicide resistance, evidence indicates that many applicators use Enlist products as their sole method of controlling glyphosate-resistant weeds. According to the plaintiffs, this increases the likelihood that weeds will grow more resistant to herbicides, which EPA failed to address when considering the benefits of Enlist One and Enlist Duo.
Lastly, the plaintiffs argue that EPA improperly relied on ineffective mitigation. Specifically, the plaintiffs claim that the mitigation measures that EPA added to the Enlist labels in 2022 fail to effectively mitigate the adverse effects that Enlist One and Enlist Duo have on the environment. The mitigation measures in question stem from a new policy that EPA has adopted in recent years to limit the impacts of pesticide exposure to species of wildlife protected by the Endangered Species Act (“ESA”). EPA developed the policy in part because the agency has struggled over the last several decades to fulfill its ESA responsibilities when approving pesticides for use. As a result, EPA faced a mounting series of lawsuits filed by plaintiffs who argued that EPA had violated mandatory provisions of the ESA when registering various pesticide labels. The mitigation policy adopted by EPA is meant to both bring the agency into better compliance with the ESA and create stronger pesticide labels. Enlist One and Enlist Duo were some of the first products to have new mitigation measures added to their labels as a result of this policy. The mitigations for Enlist include a 30-foot spray drift buffer and a requirement that applicators achieve four to six points of runoff reduction by selecting one or more mitigation activities from a “pick list” developed by EPA. Some farmers may already be achieving the required number of runoff mitigation points due to practices they are currently following.
The plaintiffs argue that the drift buffer and runoff mitigations fail to mitigate the adverse effects of Enlist One and Enlist Duo. According to the plaintiffs, EPA’s reliance on a 30-foot drift buffer is contrary to evidence showing that 2,4-D can drift further off target. The plaintiffs cite reports of crop damage involving both Enlist products that were made after the Enlist labels, which also included a 30-foot buffer, were first approved. Next, the plaintiffs argue that the runoff mitigation measures identified by EPA do not effectively reduce pesticide runoff. Specifically, the plaintiffs claim that most farmers that use Enlist products would not have to make any changes to their applications to achieve the required number of runoff points. As an example, the plaintiffs note that EPA grants runoff points to growers that apply Enlist products only once or twice a year. Because most users do not apply Enlist more than twice a year, the plaintiffs argue that the mitigation measures will not actually minimize the amount of 2,4-D or glyphosate that enters the environment after an Enlist application. For those reasons, the plaintiffs argue that both the spray drift and runoff mitigation measures included on the 2022 Enlist labels do not effectively reduce the adverse effects that Enlist One and Enlist Duo have on the environment.
Going Forward
By filing a motion for summary judgment, the plaintiffs have formally asked the court to rule on whether the 2022 labels for Enlist One and Enlist Duo violate FIFRA. If the court agrees with the plaintiffs and grants their request to overturn the labels, it would mean that neither Enlist product would remain available for use. Additionally, the court’s ruling in this case could have broader implications for EPA’s new mitigation policy. If the court agrees with the plaintiffs that the spray drift and runoff mitigations do not satisfy FIFRA, that could impact other pesticide labels that include mitigation measures based on EPA’s policy. On the other hand, should the court disagree with the plaintiffs and find that the mitigation measures meet the FIFRA “adverse effects on the environment” standard, that would suggest that other pesticide labels with similar mitigation measures could also survive a legal challenge. Ultimately, the outcome of this court case could have effects that are felt throughout the agricultural industry.
To read the plaintiff’s motion for summary judgment, click here.
To read the text of FIFRA, click here.
For more National Agricultural Law Center resources on pesticides, click here.