Monsanto on Defense in Dual Ninth Circuit Hearings

SEATTLE (CN) – Monsanto products factored in two appeals heard Wednesday by a Ninth Circuit panel reviewing the U.S. Environmental Protection Agency’s approval of a dicamba-based herbicide and possible government complicity in PCB contamination of state waterways.

National Family Farm Coalition asked the panel to review the EPA’s conditional 2016 approval of Monsanto’s dicamba-based Xtendimax, and the agency’s renewal of the registration in 2017.

George Kimbrell of the Center for Food Safety represented the coalition. He said the EPA failed to properly study the chemical before approving it in 2016, and did not look at subsequent studies before renewal in 2017.

Kimbrell said studies of dicamba before the 2016 approval involved only two fields and were conducted by Monsanto scientists.

When the conditional approval was extended in 2017, the EPA again relied on the studies and failed to review data from states that had claimed to have suffered crop damage and contamination, Kimbrell said.

U.S. Circuit Judge William Fletcher asked EPA attorney Brett Grosco how approval of dicamba could be based on such few studies.

“Is that enough?” Fletcher asked.

Grosco said the EPA used the evidence on record.

“That’s what I’m asking about,” an exasperated Fletcher said.

Grosco said the EPA believed the studies “were sufficient.”

Earthjustice attorney Paul Achitoff argued the herbicide approval violated the Endangered Species Act because the EPA arbitrarily decided it would not affect critical habitat based.

“The EPA declared Xtendimax would have no effect, but there is absolutely no evidence in the record,” Achitoff said, adding the EPA only looked at species in the treated fields because the chemical was not supposed to drift.

“We now know that crops outside sprayed fields were damaged by drift and volatility according to 2017 records.”

Achitoff said it was “grossly erroneous” for the EPA to still find no adverse effects in renewing dicamba in 2017.

Richard Bress, representing respondent-intervenor Monsanto, said the coalition’s challenge would be moot as of Nov. 9, when the conditional approval of the herbicide expires. If the EPA renews dicamba, it will be based on new data.

Kimbrell disagreed and said a decision now could provide guidance for the EPA.

“It’s vital the court decide this case,” he said.

The panel also heard arguments about whether a suit involving PCB-contaminated Washington state waterways belongs in federal court.

Polychlorinated biphenyls, or PCBs, are toxic chemicals used in the manufacturing of certain plastics and protective coatings.

Washington state sued Monsanto in 2016 for costs related to the cleanup. Monsanto removed the suit to federal court but U.S. District Judge Robert Lasnik remanded, finding the government did not control the manufacturing of the PCBs.

Monsanto appealed, and argued today that the government required Monsanto to produce specific PCBs that were used in military equipment.

“All Monsanto needs to show is the government directed the production of PCBs,” Anne Voigts, representing Monsanto, said.

“Did the government control concealment of the dangers or improper disposal?” Fletcher asked.

“The government itself was responsible for improper disposal,” Voigts responded.

She said military ships contributed to certain PCB-contaminated waters.

Washington state Deputy Solicitor General Anne Egeler argued there is “absolutely no evidence” the government directed Monsanto to manufacture PCBs.

“The government did not specify how Monsanto was to manufacture their PCBs,” Egeler said.

She said state court is the proper venue for the suit and there was no federal action to review.

The panel did not indicate when it would rule in either case..

U.S. Circuit Judges Michael Hawkins and M. Margaret McKeown rounded out the panel.


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