Ninth Circuit Issues Opinion in Glyphosate Litigation

An opinion was issued by the Ninth Circuit last Friday in a case where a number of environmental groups had petitioned for a review of an Environmental Protection Agency (EPA) decision that concluded one of the active ingredients in Roundup, glyphosate, does not pose “any unreasonable risk to man or the environment.” The opinion, issued by Judge Michelle Friedland, partially the petition in part and denied the petition in part.

The petitioners are environmental advocacy groups, including the Natural Resources Defense Council.

Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the EPA is required to regulate pesticides. Specifically, pesticide products cannot be marketed, sold, or distributed in the United States without a registration from the EPA relating to FIFRA. The EPA is unable to issue registrations to pesticides that are deemed to cause unreasonable adverse effects on the environment. Under FIFRA, the EPA must review pesticide registrations every 15 years.

Glyphosate was registered by the EPA prior to 2007, meaning that the first registration review must be completed by the EPA by October 1, 2022.

The petition for review challenged the EPA’s ecological risk assessment, cost-benefit analysis, and risk-mitigation requirements. These had concluded that while there were certain ecological risks posed by glyphosate, it did not pose a serious risk to human health and the risks were ultimately trumped by the benefits of glyphosate use. The EPA had also issued mitigation measures that were designed to reduce the aforementioned ecological risks.

The petitioners challenged the EPA’s conclusion that determined glyphosate posed no significant risk to human health. The opinion agreed, since a prior cancer paper issued by the EPA explained that there was no evidence available to reach a conclusion linking glyphosate to cancer, specifically non-Hodgkin’s lymphoma (NHL). They contended that the EPA could not “reasonably treat its inability to reach a conclusion about NHL risk as consistent with a conclusion that glyphosate is not likely to cause cancer within the meaning of the Cancer Guidelines.” Based on this, the opinion vacated this portion of the EPA’s interim decision and remanded it to the EPA for further analysis and explanation.

The petitioners additionally argued that the EPA has violated the Endangered Species Act (ESA) by not imposing mitigation efforts significant enough to prevent endangered species from being subject to things like toxic runoff and residues on vegetation. The opinion determined that the EPA had violated the ESA since they had not held a consultation prior to issuing their registration review decision about glyphosate. However, the panel did not vacate the decision entirely because the EPA has until October of 2022 to conduct a formal consultation.

Lastly, the opinion granted the EPA’s responsive motion to remand without vacatur pertaining to the ecological portion of the decision but required the EPA “to issue a new ecological portion by the October 2022 FIFRA deadline.”

This opinion, issued last Friday, is a part of litigation surrounding glyphosate which has been ongoing since March of 2020.