A Ninth Circuit panel ruled against the U.S. Environmental Protection Agency on Wednesday, finding the agency must take a second look at whether a glyphosate-based herbicide harms monarch butterflies.
A three-judge panel ruled that while the EPA did follow protocols for how it lists pesticides it failed to consider the impact of approving an herbicide that has been shown to damage milkweed, a plant considered vital to the reproductive abilities of the increasingly endangered monarch butterfly.
“Given the record evidence suggesting monarch butterflies may be adversely affected by 2,4-D on target fields, EPA was required, under FIFRA, to determine whether any effect was “adverse” before determining whether any effect on the environment was, on the whole, ‘unreasonable,’” wrote U.S. Circuit Judge Ryan Nelson — a Donald Trump appointee — for the majority. “EPA’s failure to do so means that its decision was lacking in substantial evidence on this issue.”
FIFRA stands for the Federal Insecticide, Fungicide and Rodenticide Act, which regulates pesticides to make sure they conform to safety standards for humans, wildlife and the environment.
Whenever a chemical company wants to register a pesticide with the federal government, it must go through the EPA, which conducts analyses to ensure the chemicals used are safe for the farmers, the general consumer and the surrounding environment.
In this instance, Dow Agrosciences formulated a chemical combination of glyphosate — the active ingredient in Monsanto’s Roundup — and dichlorophenoxyacetic acid. The combination, sold commercially as Enlist Duo, was required because many of the weeds detrimental to farming operations around the nation were developing immunity to glyphosate.
The chemical was developed to use specifically for farmers growing corn, soybeans and cotton, a combined $103 billion industry in the United States. The EPA agreed to register Enlist Duo in 2014, then again in 2017 with some alterations to the original registration.
The Natural Resources Defense Council sued the EPA soon after the second registration, saying the agency used a more relaxed process to make it easier to register and failed to consider the impacts to the monarch butterfly.
The EPA countered by saying the NRDC lacked standing because they couldn’t prove the organization or its staff and members suffered specific harm as a result of the registration, an argument the Ninth Circuit panel rejected.
“Members of NRDC have submitted declarations stating that they enjoy watching the monarch butterfly migration where they live, that Enlist Duo is approved for use in their states, and that they are concerned they will no longer be able to enjoy observing monarch butterflies because of Enlist Duo’s effects on milkweed,” Nelson wrote.
But the panel also rejected the argument proffered by the group that the EPA intentionally used a more lenient safety standard to smuggle Enlist Duo’s approval into the registration process.
“NRDC’s primary support for this argument is one line in the 2014 final registration decision citing FIFRA’s conditional registration provision,” Nelson writes. “But this stray line appears to be a typographical error.”
But the panel did award the NRDC a crucial victory as it relates to Enlist Duo’s ability to eradicate milkweed from farms around the nation.
Monarch caterpillars feed exclusively on leaves from the milkweed plant, which farmers consider a noxious weed.
The eradication of milkweed from agricultural areas, along with urban and suburban areas, is identified by scientists as the number one reason for the precipitous decline in monarch populations in the United States.
Population counts conducted in the United States and Mexico, where the butterflies winter, show the species has declined by more than 80% since the 1990s.
The EPA needed to consider whether registering Enlist Duo would have an adverse effect on milkweed prevalence, which in turn affects monarch butterfly populations.
The NRDC also tried to argue that glyphosate had a harmful effect on the environment and the chemical could become volatile if mixed with other agents, but the agency rejected both arguments.
Nelson also wrote a concurrence about standing issues as it relates to registration under FIFRA.
U.S. Circuit Judge Paul Watford — a Barack Obama appointee — dissented, writing that while he agreed the environmental organizations had standing, the registration orders by the EPA should be vacated because the agency failed to consider the best available science when making its decision to register Enlist Duo.
The ruling does not require the EPA to vacate registration approvals made in 2014 and again in 2017, but merely take a second look at the decision while factoring in the effects on milkweed and monarch butterflies.
U.S. Circuit Judge N. Randy Smith, a George W. Bush appointee, rounded out the panel.