Enlist Duo Ruling

Ninth Circuit Court Ruling Upholds Enlist Duo Registration

Emily Unglesbee
By  Emily Unglesbee , DTN Staff Reporter
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Corteva's Enlist Duo herbicide will remain available to growers, after the Ninth Circuit denied a petition to vacate the registration today. (DTN photo by Pamela Smith)

ROCKVILLE, Md. (DTN) -- The U.S. Court of Appeals for the Ninth Circuit today denied a petition to vacate the registration of Corteva Agriscience's Enlist Duo herbicide, a 2,4-D-choline and glyphosate premix designed for use over 2,4-D-tolerant Enlist crops.

The court ruled that EPA only needed to fix one oversight with the Enlist Duo registration regarding the herbicide's risk to monarch butterflies. The herbicide's registration will remain intact in the meantime.

The decision in Enlist's favor will come as a relief to many in the agrichemical industry, which is still reeling from a recent Ninth Circuit court decision vacating three dicamba herbicides, based on a similar lawsuit from many of the same plaintiffs as this Enlist lawsuit. (See latest news on that here: https://www.dtnpf.com/…)

The legal challenge against Enlist Duo was initiated in 2017 by a large group of environmental groups, including The Center for Biological Diversity, the National Family Farm Coalition, the Center for Food Safety, Beyond Pesticides, Pesticide Action Network and the Natural Resources Defense Council.

With one judge dissenting, the other two judges in the Enlist case dismissed the plaintiffs' arguments that EPA followed the wrong procedures in registering Enlist. They also ruled that EPA had sufficient evidence to support the registration of Enlist Duo and refuted the plaintiffs' arguments that EPA hadn't considered the risks of increased herbicide use or volatility potential from the Enlist Duo registration.

The two-judge majority also ruled that EPA did not need to account for potential synergistic effect of mixing Enlist Duo with glufosinate when they registered the herbicide, a concern the judges called "speculative."

Finally, the majority opinion ruled entirely against the plaintiffs' arguments that the Enlist Duo registration violated the Endangered Species Act (ESA).

"The EPA did what the ESA required it to do: assess risks to determine whether the exposure of protected species and critical habitat to potentially harmful chemicals would have any possible effect," the judges wrote in their majority opinion.

The judges' majority opinion only agreed with the plaintiffs' objections to the Enlist Duo registration on one claim: that the EPA failed to consider potential harm to monarch butterflies from increased 2,4-D use on milkweed in crop fields. They decided to "remand without vacatur," that is, send that issue back to EPA for fixing, but without ending the herbicide's registration. "The panel remanded so that EPA can address the evidence concerning harm to monarch butterflies and whether the registration of Enlist Duo will lead to an unreasonable adverse effect on the environment," the majority opinion read.

The lone dissenting Ninth Circuit judge in the case argued that EPA had violated the ESA by "failing to use the best scientific data to assess whether Enlist Duo will adversely affect threatened or endangered species" and that the Enlist Duo registrations should be vacated.

In an emailed statement to DTN, Corteva Agriscience said the company was "pleased with the Ninth Circuit decision to reject petitioners' attempts to vacate the registration of Enlist Duo herbicide," and assured growers that "this leading weed control product can continue to be sold and used by farmers."

The plaintiffs were disappointed with the majority ruling, said Stephanie Parent, an attorney for the Center for Biological Diversity.

"We're extremely disappointed because this ruling blatantly ignores the fact that the EPA relied on data so faulty it was rejected by the National Academy of Sciences," Parent said in an emailed statement to DTN. "As the dissenting judge pointed out, the research the EPA cites does not even qualify as scientific data. And it ignores well-documented science showing Enlist Duo harms endangered species like Hine's emerald dragonflies and Fender's blue butterflies."

The plaintiffs will fight the decision, added legal director for the Center for Food Safety, George Kimbrell.

"The panel majority's unprecedented decision is contrary to controlling law and established science, and Center for Food Safety is analyzing all legal options, including seeking a full court rehearing," he said in an emailed statement to DTN.

Emily Unglesbee can be reached at Emily.unglesbee@dtn.com

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Emily Unglesbee