Up to now, this series has focused on two cases involving plaintiff farmers who have filed suit against Monsanto Company (“Monsanto”) and BASF Corporation (“BASF”) for crop damage allegedly caused by dicamba-based pesticides produced by the companies. Those plaintiffs were seeking compensation for damages they suffered. This article will look at a case brought by several farming and environmental organizations against the Environmental Protection Agency (“EPA”), arguing that the agency’s approval of Monsanto’s dicamba-based pesticide, XtendiMax, was unlawful and should be overturned. These plaintiffs are seeking to have XtendiMax’s EPA approval revoked so that it cannot be used.

In the Ninth Circuit Court of Appeals, four environmental groups have filed a case against EPA, arguing that the agency violated both the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) and the Endangered Species Act (“ESA”) by registering Monsanto’s XtendiMax for use. The lawsuit, Nat’l Family Farm Coal. v. U.S. Envtl. Prot. Agency, No. 19-70115 (9th Cir. 2019), was originally filed in January, 2017, and challenged EPA’s 2016 registration of Monsanto’s dicamba-based herbicide, XtendiMax. That initial case was dismissed in January, 2019 because by the time the court had issued its opinion, the 2016 registration had expired and XtendiMax had be re-registered in 2018 with a new label that contained new instructions for use. Although the court dismissed the original case because the 2016 registration of XtendiMax was no longer valid, it allowed the plaintiffs to file a new case over the 2018 registration of XtendiMax on an expedited timeline. In August, 2019, the plaintiffs had refiled against EPA for its 2018 decision to register XtendiMax for use, once again alleging that EPA had violated both FIFRA and the ESA.

FIFRA CLAIMS

The plaintiffs in Nat’l Family Farm Coal. v. U.S. Envtl. Prot. Agency, argue that EPA violated FIFRA by deciding to register XtendiMax in 2018 because EPA authorized the registration without making necessary prerequisite findings, meeting the requirements to register XtendiMax for conditional use, or supporting the 2018 registration with substantial evidence.

When EPA registered XtendiMax in 2016, the agency imposed a two-year automatic expiration on the registration. The 2016 registration would automatically expire in November, 2018 unless EPA determined before the expiration date that incidents of damage caused by XtendiMax drifting off target were not occurring at “unacceptable frequencies or levels.” In other words, the 2016 registration of XtendiMax would expire in 2018 unless EPA determined that use of the pesticide was not causing an unacceptable amount of crop damage as a result of drift. According to the plaintiffs, EPA failed to make the necessary finding in its 2018 reregistration of XtendiMax. The plaintiffs argue that registering XtendiMax in 2018 without addressing the 2016 requirement for reregistration should be enough for the 2018 registration to be set aside.

In their complaint, the plaintiffs argue that EPA made two additional FIFRA violations. First, the plaintiffs allege that EPA failed to meet the requirements necessary to register XtendiMax under the “new use” exception to FIFRA’s unconditional registration standard. Under FIFRA, pesticides are registered under the unconditional registration standard unless a conditional exception applies. The unconditional standard requires that the party seeking registration of a pesticide submit to EPA enough data for EPA to determine whether the pesticide “will perform its intended function without unreasonable adverse effects on the environment.” However, FIFRA provides three exceptions to the unconditional registration standard. One of those is the conditional new use exception. Under that exception, EPA may register a new use for a pesticide that is already registered even though the data EPA has on the pesticide is insufficient to support an unconditional registration if the agency determines that: “(i) the applicant has submitted satisfactory data pertaining to the proposed additional use, and (ii) amending the registration in the manner proposed by the applicant would not significantly increase the risk of any unreasonable adverse effect on the environment.”

EPA registered XtendiMax in 2018 under the new use exception because a new label had been developed with updated instructions for use of the pesticide. The plaintiffs allege that EPA failed to make either of the necessary findings. FIFRA mandates that, at a minimum, EPA must have the data needed to assess any increase in risk that would occur as a result from the approval of a conditional new use for a registered pesticide. The plaintiffs allege that EPA did not have the data necessary to fully assess the risks of approving the changes to the XtendiMax label. Because it did not have the data necessary to make the first finding, the plaintiffs argue that EPA would have been unable to make the second finding that the new use would not significantly increase the risk of adverse effect on the environment.

Finally, the plaintiffs allege that EPA violated FIFRA by not supporting the 2018 registration decision with substantial evidence. Specifically, the plaintiffs argue that EPA’s conclusion that the changes to the XtendiMax label would prevent unreasonable adverse effects to off-target locations was not supported by substantial evidence. The plaintiffs made three arguments to show that EPA had failed to support the 2018 registration with substantial evidence. First, the plaintiffs alleged that all but one of the changes to the XtendiMax label failed to address volatility, which the plaintiffs assert is the main reason why dicamba-based herbicides move off-target. Second, the plaintiffs asserted that EPA concluded that applicator error was the main reason why XtendiMax caused harm to off-target locations without providing evidence to support that claim. Finally, the plaintiffs noted that EPA itself admitted that the changes to the XtendiMax label were minimal and would not completely eliminate the problem of XtendiMax moving off target.

ESA CLAIMS

In addition to violating FIFRA, the plaintiffs in Nat’l Family Farm Coal. v. U.S. Envtl. Prot. Agency also argue that EPA violated the ESA when it registered XtendiMax in 2018. Although the plaintiffs allege that EPA made numerous violations of the ESA, their main complaint is that EPA used the wrong standard in to make the determination that registering XtendiMax would have “no effect” on listed species. According the plaintiffs, had EPA used the correct standard, they would have had to consult with Fish and Wildlife Service (“FWS”) about the 2018 registration of XtendiMax and may have had to adopt mitigation measures to reduce harm to endangered species.

The plaintiffs argue that EPA violated the ESA by using a FIFRA standard to determine that registering XtendiMax in 2018 would have no effect on any listed species instead of the ESA standard. By applying the FIFRA standard, EPA concluded that registering XtendiMax in 2018 would have “no effect” on any listed species or designated critical habitat. The plaintiffs argue that instead of applying FIFRA standards, EPA should have applied ESA standards which the plaintiffs assert would have ultimately triggered consultation with FWS on XtendiMax’s impacts to endangered species.

When registering a pesticide for use, FIFRA requires EPA to determine that the pesticide “will not generally cause unreasonable adverse effects on the environment.” EPA must make this determination by “taking into account the economic, social, and environmental costs and benefits of the use of any pesticide[.]” Under the ESA, any time a federal agency authorizes, funds, or carries out an action, it must comply with the statute by ensuring that the action will not jeopardize any listed species. If the agency finds that the proposed action “may effect” a listed species, then it must consult with FWS to minimize the effect. The FIFRA standard differs from the ESA standard because FIFRA requires EPA to weigh all the costs and benefits of the pesticide to determine if there will be an unreasonable adverse effect while the ESA requires agencies to begin consultation once it determines that the agency action may have an effect on any listed species. According to the plaintiffs, EPA used FIFRA’s “unreasonable adverse effects” standard to conclude that there would be no harm to any listed species instead of applying the ESA “may effect” standard. The plaintiffs argue that had EPA applied the ESA standard, EPA would have concluded that registering XtendiMax in 2018 may have affected several listed species and the agency would have conducted formal consultation with FWS.

Because of the alleged violations of both FIFRA and the ESA, the plaintiffs ask the court to vacate the 2018 registration of XtendiMax. If the court ultimately finds for the plaintiffs, then XtendiMax could be banned from use on a federal level until EPA complies with the court’s order. Oral argument in this case has been scheduled for April 21, 2020. After oral argument, the Ninth Circuit will make its decision.

To read the complaint in Nat’l Family Farm Coal. v. U.S. Envtl. Prot. Agency, click here.

To read the text of FIFRA, click here.

To read the text of the ESA, click here.

For more National Agricultural Law Center resources on pesticides, click here.

For more National Agricultural Law Center resources on the ESA, click here.

To read all of the blog posts in this series, click here.