EPA and Dow AgroSciences Say Enlist Duo Herbicide Case Should Not Have Re-Hearing

Dow AgroSciences and the Environmental Protection Agency (EPA) each filed a response to the petitioner’s request for an en bac rehearing in a Ninth Circuit case involving herbicide Enlist Duo. The respondents claimed that the panel’s opinion was correct and that taking away the registration for the herbicide would have a detrimental impact on farmers and the environment. 

The court decided to uphold the EPA’s decision to register the herbicide in July, after a panel found that the EPA’s alleged error, not considering the harm to monarch butterflies and from killing milkweed, was “not serious.” It determined the crops the herbicide was meant to protect, corn, soybeans, and cotton, were some of the “most important agricultural commodities in the United States.” The plaintiffs, including the Center for Food Safety, Beyond Pesticides, Family Farm Defenders, the Center for Biological Diversity, and the National Family Farm Coalition filed the petition for en banc rehearing in mid-September. 

The EPA said that in each of its three orders registering the herbicide in additional states in 2014, 2015, and 2017, it found that its actions would have no effect on any endangered species or their habitat. Reportedly, if they had determined it may have an effect it would engage in consultations, but since it determined there would not be an effect the EPA did not go through that procedure. The EPA argued that it did complete the necessary steps when registering Enlist Duo and that the herbicide should stay registered as the court previously decided. The EPA alleged that the panel’s decision presented “no issue of exceptional importance” and that the petitioners’ complaint about the panel’s assessment does not merit a rehearing of the matter. 

Dow AgroSciences was the inventor of Enlist Duo and is an Intervenor-Respondent in the Ninth Circuit case. The company said in its response that the panel, which made the previous decision, applied the correct precedent and rightly concluded that the EPA met its “best-scientific-data-available” requirement and properly interpreted the “may effect” standard. The response further argued that overturning the panel decision, as the petitioners recommended, would have significant negative consequences, including harming the registration process for herbicides and being “enormously disruptive” to farmers.  

The response said, “these negative effects would exacerbate the challenges American farmers face in light of recent vacatur of EPA registrations for other herbicides such as dicamba.” Enlist Duo reportedly works against weeds that are resistant to glyphosate, a chemical found in other common herbicides, including Roundup. Enlist Duo is also reportedly a favorable herbicide for the environment, but currently available replacements are not. 

The EPA is represented by its lawyers. Dow AgroSciences is represented by Wiley Rein LLP, Quinn Emanuel Urquhart & Sullivan LLP, and Arent Fox LLP. The petitioners were represented by lawyers for the Center for Food Safety and the Center for Biological Diversity