Ninth Circuit Takes Up EPA Vetting of Popular Herbicide

SAN FRANCISCO (CN) — A Ninth Circuit panel heard oral argument Tuesday in a case involving the legality of dicamba, a pesticide farmers say is necessary to kill noxious weeds but environmentalists claim ravages ecology. 

A coalition of environmental organizations — including the Pesticide Action Network, the Center for Biological Diversity and the National Family Farm Coalition — said in its lawsuit that the U.S. Environmental Protection Agency failed to follow its own procedures and flouted the Endangered Species Act when it gave a regulatory green light for the use of dicamba.

Dicamba is used primarily as a weed killer in agricultural operations across the United States. While the chemical has been around for decades, its use exploded across the nation’s breadbasket after Monsanto manufactured plants that were genetically modified to be resistant to dicamba. 

However, not everyone in the agricultural community is happy about the technological development. Many farmers throughout the country claim dicamba drifts onto their properties and has caused significant damage to their crops. 

The pesticide has been banned in Arkansas and Missouri. A peach farmer from Cape Girardeau, Missouri, won a multimillion lawsuit against Monsanto back in January, after a judge agreed the chemical decimated the farmer’s orchard.  

Tuesday’s hearing wasn’t about Monsanto’s culpability, but rather whether the EPA violated its own internal protocol for approving the use of pesticides and violated the Endangered Species Act in the process. 

“The EPA did not have enough information to support its regulatory decision,” said Sylvia Wu, an attorney arguing for the environmental organizations. 

Wu said the EPA bears the burden to prove a given pesticide is safe, not a cost-benefit analysis that weighs potential damage to the environment against the economic benefits accrued by agricultural practitioners. 

The attorney said the EPA must perform more and better studies to prove dicamba does not pose a threat to other plants. 

“There is not enough information to characterize the incremental risks, which its own regulation requires,” Wu said. 

George Kimbrell, another attorney for the environmentalists, said the Endangered Species Act requires the EPA to bar the use of dicamba if it poses any level of threat to listed species. Kimbrell said the agency is violating the law when it characterizes the chemical under a category that indicates it may cause harm but still allows the pesticide to be used. Instead, once the pesticide poses any threat to endangered plants and animals, it should be banned. 

Dicamba is thought to harm other plants more than animal or insect species, unlike other classes of pesticides. 

Sara Buckley, arguing for the EPA, said the environmentalists are mischaracterizing the EPA’s regulations and that the agency is proceeding carefully and legally as more scientists attempt to determine if and to what extent dicamba poses a threat to the ecology. 

“This case is fundamentally about the application of scientific expertise to make a judgment call in the face of scientific uncertainty,” Buckley said. 

She and the other attorneys did not argue that dicamba is safe to use and has no harmful effects on the ecology, merely that the plaintiffs were distorting its methodology and decision-making process. 

“The EPA used the best available science,” said another EPA attorney Jon Grosko. 

A third EPA attorney, Richard Bress, asked the panel not to institute any ban on the pesticide before or during the upcoming growing season, saying it could cause farmers to scramble for other pesticides, many of which do not have an extensive record of being studied by the EPA. 

But Kimbrell balked at that, saying the environment would be much better off without the 25 million pounds of the pesticide projected to be poured on crops throughout the United States this summer. 

U.S. Circuit Judges Michael Hawkins, M. Margaret McKeown and William Fletcher — all Bill Clinton appointees — presided over the hearing remotely from their homes. The attorneys also made appearances from home, typically using their law libraries as background. 

There were a few technical glitches during the hearing, but McKeown noted both sides were able to make effective arguments despite the circumstances. 

The judges took the matter under submission and are expected to rule in the coming months.

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