EPA Asks 9th Circuit to Remand Glyphosate Lawsuit so it can Consider Environmental Effects

Along with its answer brief, the United States Environmental Protection Agency (EPA) filed a motion asking the court to partially remand a Ninth Circuit court pesticide lawsuit against it on Tuesday to allow the agency to address errors in the registration of glyphosate products, including Roundup. 

The motion explained that the petitioners, including the Natural Resources Defense Council, Rural Coalition, Organizacion En California De Lideres Campesinas, Farmworker Association of Florida, Beyond Pesticides, and Center for Food Safety, filed the lawsuit to challenge the EPA’s conclusion that the use of glyphosate does not cause a significant risk to human health, and other aspects of the EPA’s conclusions in its registration.  The plaintiffs alleged that the EPA did not accurately consider the ecological risks, correctly balance risks against benefits, and did not consult the Endangered Species Act as required. 

Although the EPA is contesting these allegations, it asked the Ninth Circuit to remand the aspects of the registration that deal with ecological risks and the weight of risks against benefits of glyphosate, but not to vacate the registrations. It specified that it does not wish to remand portions related to human health or uses and benefits of glyphosate, the EPA claimed that its previous analysis is correct and asked the court to sustain it.  

Through the remand, the EPA argued that it could address the court’s decisions and whether they would affect its analysis. “Agencies have inherent authority to reconsider past decisions and to revise, replace, or repeal initial actions,” the EPA claimed. 

Specifically, the defendant said it wanted time to consider whether the change to the Biden Administration impacts the federal agency’s decision, if a draft biological evaluation from November 2020 would impact its analysis, how the registration of glyphosate affects the habitat for monarch butterflies, other ecological risks of glyphosate, and how spray-drift from glyphosate is associated with drift risks from dicamba, another herbicide which has led to litigation. 

The EPA argued against vacating the conditional registration, saying that would allow it flexibility with labeling changes during its analysis and that taking away the registration of over 500 glyphosate products “is not available relief.” It claimed that vacating the registration would harm manufacturers and sellers of glyphosate and disrupt the agricultural economy. 

In a press release, the Center for Food Safety said that through this motion the EPA “effectively admitted grave errors” in its interim registration for glyphosate. “The agency stated that, despite its misgivings, Roundup should nonetheless stay on the market in the interim — without any deadline for a new decision,” the Center for Food Safety said, arguing against the motion. 

The plaintiff explained that the EPA is required to re-assess pesticides every 15 years, but that in 2020 it only completed a partial review of glyphosate, and failed to take steps to evaluate its impact on the environment and endangered species. 

“Rather than defend its prior decision, at the 11th hour EPA is asking for a mulligan and indefinite delay, despite having previously spent far too long, over a decade, in re-assessing it,” said George Kimbrell with the Center for Food Safety. “Worse, EPA admits its approval risks harms to farmers and endangered species, but makes no effort to halt it. We will ask the Court to deny this extraordinary request to paper over glyphosate’s ecological harms only to approve it anyway down the road. Time to face the music, not run and hide.” 

The EPA is represented by the Department of Justice, and the plaintiffs are represented by attorneys with the Center for Food Safety.