The past several weeks have seen developments in various on-going legal disputes over pesticides. Recent actions concerning glyphosate, dicamba, and pesticide-treated seeds took place over the course of September. Each action may lead to further challenges down the road.
Glyphosate
On September 23, 2022, the Environmental Protection Agency (“EPA”) announced that it had withdrawn all portions of its interim registration review decision for the pesticide glyphosate. A final registration review decision is currently not expected until 2026.
According to the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), it is illegal to sell or use a pesticide in the United States unless it has been registered. In order to register a pesticide under FIFRA, EPA must make a determination that use of the pesticide will not cause “unreasonable adverse effects on the environment.” 7 U.S.C. § 136a(c)(5)(C). FIFRA clarifies that “unreasonable adverse effects on the environment” means “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide.” 7 U.S.C. § 136(bb).
After a pesticide is registered, FIFRA requires EPA to review the registration every fifteen years to ensure that the pesticide continues not to cause unreasonable adverse effects on the environment. During review, EPA conducts a thorough evaluation of all available data relating to the pesticide. Because registration review is a lengthy process, EPA may issue an interim registration review decision before formally completing review. The interim decision may impose new mitigation measures or identify additional data that EPA needs to complete the registration review. Finally, EPA will issue a final registration decision, either issuing a finding that the pesticide continues to meet FIFRA standards or that it causes unreasonable adverse effects on the environment and can no longer remain registered for use.
Although FIFRA has been in place since 1972, Congress only passed the amendment requiring fifteen-year registration review in 2007. At that time, over 700 pesticides were currently registered for use, including glyphosate the active ingredient in Roundup. Congress directed EPA to finish registration review for all 726 previously registered pesticides by October 1, 2022. EPA began its registration review of glyphosate in 2009. In 2017, EPA issued a paper as part of the review concluding that glyphosate was “not likely” to cause cancer in humans. In 2020, EPA published an interim registration review for glyphosate. Along with announcing new mitigation measures for glyphosate, the interim decision affirmed that the “not likely” conclusion from the 2017 paper was now final.
Following the release of the 2020 glyphosate interim registration decision, several environmental groups filed suit. The plaintiffs argued that EPA violated FIFRA by failed to support its finding that glyphosate is not likely to cause cancer in humans, and that EPA had violated the Endangered Species Act (“ESA”) by failing to satisfy the ESA’s consultation requirements when it issued the glyphosate interim decision. Ultimately, the court sided with the plaintiffs, finding that EPA had not based its conclusion that glyphosate was not carcinogenic to humans on substantial evidence, and that EPA had failed to meet ESA requirements when issuing the interim registration review decision for glyphosate. Accordingly, the court vacated the decision and sent it back to EPA for review. The court also ordered EPA to complete the review by October 1, 2022, keeping inline with the same deadline set by Congress. For more information about the lawsuit, click here.
Following the court’s decision, EPA petitioned for release from the October 1 deadline, claiming that a thorough review could not be completed by that date. The court denied this request, prompting EPA to pull its interim registration decision for glyphosate. In the announcement that the interim decision would be pulled, EPA explained that it would be unable to complete the registration review for glyphosate by October both because EPA must revisit its conclusion that glyphosate is not likely to cause cancer in humans, and because the required ESA consultation process is currently ongoing.
While EPA’s decision to pull the interim registration decision will not affect the availability of any glyphosate products currently on the market, it is unclear whether any immediate consequences will occur. It is possible that failing to meet the October 1, 2022 deadline could prompt a legal challenge. It is also possible that EPA could face future lawsuits as it revisits the risk assessments for glyphosate. It is unlikely that this is the last time the reregistration decision for glyphosate is brought before a court.
Dicamba
Over the last several years, the pesticide dicamba has been the subject of multiple legal challenges. One of the more recent lawsuits concerning dicamba was filed by a honey producer in Arkansas who claims that dicamba drift has been causing damage to his production since 2017. Recently, the judge overseeing the case determined that several claims filed by the plaintiff had been properly raised and could continue to trial.
Prior to 2016, dicamba was used only in products that were applied to fields in late winter or early spring in order to remove any unwanted weeds prior to planting. Dicamba was used before planting because it is known for being volatile, meaning that droplets of dicamba are prone to evaporating into the air and drifting off-target. However, in 2016 EPA approved a new form of less volatile dicamba. This new form, created by Monsanto, was approved for use directly on top of crops that had been genetically altered for dicamba resistance. Shortly after this new form of dicamba came on the market, agricultural producers began filing lawsuits against pesticide manufacturers claiming that they had suffered crop damage as a result of dicamba drift.
In Coy’s Honey Farm Inc. v. Monsanto Co., No. 1:21-cv-89 (E.D. Mo. 2021), the plaintiff filed a variety of claims over harm allegedly caused by dicamba drift, including claims for product liability. Plaintiffs typically raise product liability claims to argue that a manufacturer is liable for damage caused by a defective product. Here, the plaintiff brought products liability claims for breach of duty of manufacturer, breach of duty to warn, breach of duty to instruct, and negligence. In other words, the plaintiff argued that the defendant failed to act as a reasonable pesticide manufacturer by designing a product that caused unreasonable risks to persons and the environment, by not providing adequate warnings that their product was dangerous, and by not giving adequate instructions that would have prevented the harm.
Earlier this year, the defendants asked the court to dismiss the plaintiff’s product liability claims, arguing that they fall outside the statute of limitations. In Arkansas, a plaintiff can only raise a claim for product liability for up to three years after damage to the plaintiff occurred. Once the three-year mark has passed, the plaintiff can no longer bring a valid claim. Here, the defendants argued that the plaintiff’s claims fell outside the statute of limitations because the plaintiff claimed that the harm to its honey operation began in 2017, which was more than three years before the plaintiff filed its lawsuit. However, the court disagreed. According to the court, the plaintiff claimed that it experienced separate instances of damage that occurred seasonally, starting in 2017, and that each instance carried its own statute of limitations. While the court agreed that the instance of damage that occurred in 2017 was outside the statute of limitations, the instances from 2018, 2019, 2020, and 2021 were not. Therefore, the court allowed the plaintiff’s product liability claims to proceed.
This case is still in its early stages, and it is unclear what the ultimate outcome will be. To learn more about the litigation involving dicamba, click here.
Treated Seeds
In September 2022, EPA officially denied a petition to regulate pesticide-treated seeds under FIFRA, stating that the agency already “fully assesses” the effects of treated seeds on human health and the environment. The petition was filed by environmental groups in 2017, and in 2021 the same groups filed a lawsuit asking the court to set a specific date by which EPA would be required to respond to the petition. Following EPA’s denial, it is uncertain how the environmental groups will respond.
FIFRA requires all pesticides to be labeled and registered by EPA before they can be legally used in the United States. However, there are some limited exemptions to this requirement. One such exemption is the “treated articles or substances” exemption, typically referred to as the treated article exemption. A treated article is defined as “an article or substance treated with, or containing, a pesticide to protect the article or substance itself […] if the pesticide is registered for such use.” 40 C.F.R. § 152.25(a). Anything that falls under the definition of treated article, such as wood products that have been treated with a registered pesticide to protect against insects or fungus, can be sold in the United States without being independently registered and labeled under FIFRA.
Pesticide-treated seeds are crop seeds that have been coated in a layer of pesticides prior to sale. Seeds treated with pesticides are expected to take the pesticide into the plant issue as they sprout in order to limit crop damage from insects and fungus. In 2017, various environmental groups filed a petition with EPA asking the agency to draft and adopt a final rule finding that pesticide-treated seeds are not subject to the treated article exemption and must be registered under FIFRA. In late 2021, the same environmental groups filed a lawsuit against EPA, claiming that the agency had failed to respond to the petition in a timely manner and asking the court to set a date by which EPA had to respond.
Since the lawsuit was initially filed, EPA and the environmental groups reached a settlement agreement to resolve the case with EPA agreeing to respond to the 2017 petition. On September 28, 2022, EPA formally denied the 2017 petition to exclude pesticide-treated seeds from the treated article exemption. According to EPA, treated seeds meet the two regulatory conditions necessary to satisfy the treated article exemption. First, treated seeds are only coated with pesticides that have been registered under FIFRA for use as a seed treatment. Second, any claims made about treated seeds are made for the protection of the seed and the crop that the seed becomes. Additionally, EPA explained that when it registers a pesticide that will be used as coating for treated seeds, the impacts of using the pesticide for that purpose are taken into account.
While EPA declined to remove treated seeds from the treated article exemption, the agency did announce that it would be issuing an advanced notice of propose rulemaking to seek additional information related to treated seeds. Specifically, EPA announced that it would be looking for information on whether treated seeds were being distributed, sold, or used in a manner inconsistent with pesticide labeling. Once it has gathered and reviewed the available information, EPA will consider whether further actions, such as reducing the use of pesticides as seed coating or clarifying labeling language, will be necessary.
At the moment, it is not clear whether the environmental groups will file another lawsuit to challenge EPA’s denial of the 2017 petition. However, for the time being treated seeds will continue to fall under the treated article exemption of FIFRA and will not require additional registration before they can be sold or used in the United States. To learn more about treated seeds and the 2021 lawsuit, click here.
To read the court’s decision in Coy’s Honey Farm Inc. v. Monsanto Co., click here.
To read the text of FIFRA, click here.
For more information on pesticides from the National Agricultural Law Center, click here.