(CN) — Advocates for environmentalists and farm workers attempted to convince a three-judge panel Monday to set aside the U.S. Environmental Protection Agency's decision to allow the widespread use of a herbicide called glyphosate — the active ingredient in Roundup.
“The court should vacate the decision,” said Amy van Suan during oral arguments that lasted nearly two hours.
Van Suan represents a coalition of groups including the Center for Food Safety and the Rural Coalition and argued the EPA erred when it reached an interim decision in 2020 that glyphosate isn't dangerous for humans.
“The agency conclusion that glyphosate poses no danger to human health lacked substantial evidence,” van Suan said. The petitioners asked the three-judge panel to vacate EPA’s reapproval of glyphosate given the recent revelations that glyphosate has been linked to the development of certain kinds of cancers in humans, most notably nonhodgkins lymphoma.
Petitioners argued that the EPA engaged in a sleight of hand when they said there was little correlation between glyphosate and cancer in general when instead, the agency’s own scientists have asserted that there is at least a correlation between the ingredient and the specific type of cancer.
“EPA ignored its own experts and guidelines in making these judgments,” van Suan said.
The three-judge panel seemed inclined to agree the agency may have not taken into account all the available information in making its 2020 decision, but also seemed coy about removing all glyphosate products from the market. They indicated if they do side with petitioners, they would likely remand the issue to the agency for a final decision.
“Why wouldn’t we just send it back to the EPA,” U.S. Circuit Judge J. Clifford Wallace, a Richard Nixon appointee, asked at one point during the hearing. “We don’t believe they are criminals over at the EPA so why shouldn’t we just send it back to them?”
Van Suan said that the legal remedy is deregistering products when an agency makes an illegal approval of them, but it appears the three-judge panel will not opt for that route judging by their comments.
However, U.S. Circuit Judge Michelle Friedland did appear to be in favor of at least remanding the decision back to the EPA as she took a particularly sharp line of questioning of the EPA’s attorney, Phillip Dupre.
“In the record, they said they couldn’t reach a decision, but the final decision said a correlation between glyphosate and cancer was not likely,” the Barack Obama appointee said. “I can’t understand how the agency gets to unlikely.”
Dupre responded: “The cancer guidelines don’t rely on precise terminology, they are more like narrative descriptions."
Friedland expressed doubt. “It seems like the guidelines weren’t followed,” she said, echoing the complaint of the petitioners.
The petitioners say glyphosate not only poses threats to human health, but also affects endangered plants and animals and the EPA failed to take threats to those species into account when it made its determination.
Dupre said the court must defer to agency experts in the matter and should not substitute its own expertise, which is in the arena of legal matters, for the scientific and regulatory expertise of those working at the federal agency.
“The deferential standard requires that the court uphold the agency’s decision if it is supported by substantial evidence in the record,” Dupre said. “That standard is clearly met here.”
Glyphosate has become a flashpoint for controversy in recent years, as the agricultural community says it is a necessary tool for farmers to keep weeds at bay and maximize their yields. Labor groups and environmental organizations say the ingredient is carcinogenic and wreaks havoc in the environment in a variety of ways.
Recently, a landmark civil case that awarded millions of dollars to a plaintiff who said they contracted cancer due to glyphosate exposure marked a shift in the legal interpretation.
The Ninth Circuit’s ruling on this lawsuit, filed in 2020, could further cloud the future of glyphosate use in the United States.
U.S. Circuit Judge Danny Boggs, a Ronald Reagan appointee sitting with the panel by designation from the Sixth Circuit, rounded out the panel.
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