Enlist Duo Survives Appeal

Ninth Circuit Rejects Request to Rehear Enlist Duo Lawsuit

Emily Unglesbee
By  Emily Unglesbee , DTN Staff Reporter
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Enlist Duo's registration is safe once again, after the Ninth Circuit declined a petition to reevaluate its past ruling upholding the herbicide's registration. (DTN file photo by Pamela Smith)

ROCKVILLE, Md. (DTN) -- Enlist Duo's registration has survived another legal challenge, after the U.S. Court of Appeals for the Ninth Circuit declined to reevaluate part of its earlier ruling upholding the herbicide's registration.

In that first ruling in July 2020, a panel of three Ninth Circuit judges ruled in a 2-1 judgement that the herbicide, a 2,4-D-choline-glyphosate premix designed to be sprayed over top 2,4-D-tolerant Enlist crops, did not violate federal law, as a group of environmental and farmer groups had alleged in a lawsuit. The judges did order EPA to reevaluate Enlist Duo's impacts on monarch butterflies but left the herbicide's registration intact and on the market.

That ruling was a major victory for the agrichemical industry, which was still reeling from a Ninth Circuit Court decision earlier in the summer, which vacated three dicamba registrations, based on similar legal arguments by the same group of plaintiffs. (See more details here: https://www.dtnpf.com/….)

Specifically, the plaintiffs in the Enlist Duo case -- a group of environmental organizations led by the Natural Resources Defense Council and the Center for Food Safety -- then filed a petition in late September asking for a larger panel of Ninth Circuit judges to rehear part of their lawsuit, known as a "petition for rehearing en banc."

The plaintiffs argued that the original July ruling violated the Endangered Species Act, ignored legal precedent and created "a dangerous loophole" for future pesticide registrations.

On Nov. 18, the Ninth Circuit rejected those arguments. Only one judge -- Judge Paul Watford, who also dissented in the original 2-1 decision -- recommended that the court reexamine the case. As a result, the petition was rejected and the plaintiffs now have only one final recourse, an appeal to the U.S. Supreme Court.

The decision comes as Corteva Agriscience, the current registrant of Enlist Duo, is gearing up to oversee the planting of a record number of its 2,4-D-tolerant Enlist crops in 2021.

"All Corteva seed brands plus 100 licensees are adding Enlist traits into their best germplasm, and for 2021, we expect to see more varieties with the E3 trait," Steve Snyder, Enlist technology specialist for Corteva, said in a recent company media event. He added later that, "Last year we were around 20% [soybean market share]. We expect that to grow; we are seeing significant growth for 2021."

In an emailed statement to DTN, the company applauded the Ninth Circuit's decision. "Corteva Agriscience is pleased with this decision that affirms the U.S. Environmental Protection Agency's 2017 registration of Enlist Duo herbicide," the statement read. "We are confident in the sustainability and effectiveness of Enlist Duo herbicide."

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

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Emily Unglesbee