Plaintiffs Seek En Banc Hearing in Dicamba Case Citing EPA

On Tuesday, plaintiffs in the Ninth Circuit Court lawsuit regarding the herbicide dicamba filed a petition for a rehearing, and a rehearing en banc. The court canceled the registrations of three over-the-top herbicide products containing dicamba earlier this year, causing the Environmental Protection Agency (EPA) to work with the court system to extend its registration through the current planting season, despite objections from the petitioners.

The Center for Food Safety and the Center for Biological Diversity, represented by their own lawyers, claimed in the petition that the EPA violated the Endangered Species Act (ESA) with their approach to the issue. The plaintiffs said the EPA “vitiated the ESA’s best science mandate” with an unreliable model, causing them to use an “unlawful legal standard” for the ESA’s threshold and make a “no effect” ruling, which the plaintiffs said merits a rehearing.

The petition said, “overall, the EPA system was so flawed that what it delivered was not actually a meaningful ‘risk estimate’ even for ‘adverse effects’ … let alone a conservative one looking for ‘any chance’ of ‘any possible effect.’ (the) EPA relied on a scientifically indefensible model to avoid any expert consultation … and giving endangered species the benefit of the doubt.”

The organizations also claimed the actions of the EPA led to a “dangerous new loophole,” partially because it used an “older, discredited scientific model” when approving dicamba. They also claimed that it did not need to create new data because the data needed to review the herbicide was already available in a 2013 report.

The petition concluded, “the majority’s decision cut a gaping hole in the ESA’s heart. It creates perverse agency incentives to use models and data they know are scientifically unsound, and to determine endangered species’ toxicity levels or mortality risks they believe appropriate, rather than consult the expert agencies for ‘any possible effect,’ as required. And it will leave 500+ endangered species indisputably exposed to massive new use of toxic pesticides without any expert analysis of the true risk to them.”

BASF, Bayer, and E.I. duPont de Nemours, intervenors in the case who produce the dicamba products and want their registration to be reconsidered, filed a similar petition in July asking for an en banc hearing which was supported by several other organizations in amicus curiae briefs. This request, however, was rejected by the court