Ninth Circuit orders EPA to reexamine glyphosate’s toxicity to humans and the environment

SAN FRANCISCO (CN) — The Ninth Circuit Court of Appeals rejected the Environmental Protection Agency’s determination that glyphosate likely poses no “unreasonable risk” to the environment or human health on Friday, finding the agency shirked its duty to adequately consider whether the main ingredient in the weed killer Roundup causes cancer.

The three-judge appellate panel sided with a host of environmental groups who argued in court earlier this year that the EPA erred when it reached its interim decision on glyphosate in 2020.

“EPA ignored its own experts and guidelines in making these judgments,” Amy van Suan, senior attorney with Center for Food Safety and lead counsel in the case, told the judges in January.

The panel agreed, finding the EPA discounted epidemiological studies showing a link between glyphosate exposure and an increased the risk of non-Hodgkin lymphoma, concluding that the association could be explained by “chance and/or bias.” This decision, the panel said, defied the EPA’s own Cancer Guidelines.

“Today’s decision gives voice to those who suffer from glyphosate’s cancer, non-Hodgkin’s lymphoma,” van Saun said in a statement following the ruling. “EPA’s ‘no cancer’ risk conclusion did not stand up to scrutiny. Today is a major victory for farmworkers and others exposed to glyphosate. Imperiled wildlife also won today, as the court agreed that EPA needed to ensure the safety of endangered species before greenlighting glyphosate.”

The 54-page decision penned by U.S. Circuit Judge Michelle Friedland also finds fault with the EPA’s selective use of historical-control data regarding tumors in animals.

“Rather than using historical-control data both when the data bolster and when the data undermine studies’ results, as would be supported by the Cancer Guidelines, EPA uses this type of data only to discount studies indicating that glyphosate may cause tumors,” the Obama-appointee wrote for the panel. Friedland was joined by U.S. Circuit Judge J. Clifford Wallace, a Nixon appointee, and U.S. Circuit Judge Danny Boggs, a Reagan appointee sitting with the panel by designation from the Sixth Circuit.

The panel noted the EPA’s own scientific advisory panel had criticized the criteria the agency used to dismiss tumor results in rodent studies as “not advisable” because it was “not consistent with ... standard ways in which ... results are typically interpreted.”

“According to the SAP, there were numerous instances in which historical-control data could add weight to tumor findings, but EPA never used the data in that manner,” Friedland wrote.

The judges also found the EPA disregarded its Cancer Guidelines by disregarding evidence of glyphosate’s high-dose toxicity, simply because most humans won’t be exposed to doses above a certain range. Friedland wrote that this seems contrary to the purpose of conducting a hazard assessment.

An EPA spokesperson said the agency is reviewing the court’s decision.

Friday’s ruling did not address the ecological risks of glyphosate since the EPA failed to respond to allegations that it harms soil health, pollinators and monarch butterflies. With the October 2022 deadline for the agency to complete its final registration review decision of glyphosate fast approaching, the panel found it prudent to give the agency four months to address the groups’ ecological claims.

"Thus, while we hesitate to reward what some might consider sloth or indolence, we also recognize that fully litigating the issues could result in an outcome nobody wants: more, and probably unnecessary, delay,” Friedland wrote.

Glyphosate has become a lightning rod for controversy in recent years, as the agricultural community says it is a necessary tool for farmers fend off weeds and maximize their crop yields. Labor groups and environmental organizations say the ingredient is carcinogenic and environmentally toxic. The International Agency for Research on Cancer classified it as a “probable human carcinogen” in 2015.

Bayer AG, which bought Roundup maker Monsanto in 2018 for $63 billion, has also vowed to remove glyphosate-based products from retail store shelves by 2023 to prevent future litigation, though the company has consistently said that it stands behind Roundup’s safety.

In 2018 and 2019, three Bay Area juries ordered Bayer to pay millions to plaintiffs who claimed their non-Hodgkin lymphoma was caused by Roundup use. But the company has also racked up a number of legal wins, most recently in Oregon and Missouri circuit courts where juries found Roundup not responsible for plaintiffs’ cancer.

Bayer is currently awaiting the U.S. Supreme Court’s decision on whether it will hear the appeal of Edwin Hardeman, a Bay Area man who was awarded $75 million in punitive damages after a jury found Monsanto wrongly failed to warn consumers about the cancer risk of Roundup.

U.S. District Judge Vince Chhabria, who oversaw the case, later found the damages excessive and reduced the award to $20 million. Monsanto appealed, but the ruling was upheld by the Ninth Circuit.

In June 2020, Bayer agreed to pay $10.9 billion to settle nearly 100,000 lawsuits in which plaintiffs claim Roundup’s active ingredient glyphosate caused them to develop cancer. But Chhabria refused to approve another $2 billion deal to resolve future claims from Roundup users who have not developed cancer but may be diagnosed in the future.

However, Chhabria recently gave the preliminary nod to a nationwide settlement reimbursing consumers for their Roundup purchases on the condition that it makes abundantly clear that they can still sue the manufacturer if they develop cancer.

In a statement Friday, a Bayer spokesperson said the EPA's 2020 conclusion "was based on a rigorous assessment of the extensive body of science spanning more than 40 years."

"We believe that the U.S. EPA will continue to conclude, as it has consistently done for more than four decades, that glyphosate-based herbicides can be used safely and are not carcinogenic, and we are committed to working with the Agency to minimize the environmental impacts of our products," he said.

Follow @MariaDinzeo

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