966 F.3d 893
9th Cir.2020Background
- Enlist Duo is a Dow Agrosciences pesticide combining 2,4‑D (choline salt) and glyphosate; EPA registered it in 2014, amended in 2015, and reissued/expanded registration in 2017.
- Petitioners (NRDC and a coalition including CFS, CBD, PANNA, NFFC groups) challenged EPA’s registrations under FIFRA (procedural defects / lack of substantial evidence) and the ESA (failure to consult / flawed "may affect" and critical‑habitat analyses).
- Procedural disputes: whether petitions were timely under 7 U.S.C. §136n(b) (60‑day filing rule) and whether petitioners had associational Article III standing.
- On the merits, petitioners contested (inter alia) EPA’s application of conditional vs. unconditional FIFRA standards, EPA’s assessment of: (a) harm to monarch butterflies from milkweed loss on treated fields; (b) whether Enlist Duo increases glyphosate use; (c) volatility of 2,4‑D choline salt; and (d) possible synergism with glufosinate.
- The Ninth Circuit: (1) held petitions timely; (2) found at least one petitioner per petition had associational standing; (3) rejected most substantive challenges under FIFRA and ESA but found EPA failed to assess adverse effects to monarchs from loss of milkweed on treated fields, and remanded to EPA without vacatur for further consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of petitions (date of entry) | Petitioners: Notice did not "explicitly" state date of entry; therefore 60‑day clock began two weeks after signing. | Dow: Date of issuance (Jan 12, 2017) was the date of entry; petitions were filed late. | Court: "Date of entry" not explicit; regulation fixes entry as two weeks after signature → petitions timely. |
| Article III / associational standing | Petitioners: organizations have associational standing via members (aesthetic, recreational, economic injuries; procedural injuries under FIFRA/ESA). | EPA/Dow: lack of injury, causation, or redressability for some petitioners/claims. | Court: At least NRDC and CFS established associational standing for FIFRA; CFS (and at least one NFFC member) established standing for ESA claims. |
| FIFRA registration standard (conditional v. unconditional) | NRDC: EPA applied conditional standard in 2014 registration (less protective). | EPA/Dow: NRDC waived the claim; documents show EPA applied unconditional standard; 2017 miscitation harmless. | Court: NRDC waived; record shows unconditional standard applied in 2014; EPA’s 2017 citation of wrong statutory text was harmless. |
| FIFRA substantial‑evidence challenges — monarchs & milkweed | Petitioners: EPA failed to determine whether destruction of milkweed on treated fields produces an "adverse" effect before assessing "unreasonable" effects. | EPA: milkweed control would occur regardless; no separate assessment required; other analyses adequate. | Court: EPA failed to assess adverse effects to monarchs from on‑field milkweed loss; this lack means the FIFRA determinations lack substantial evidence on that point → remand without vacatur. |
| FIFRA substantial‑evidence challenges — glyphosate use, volatility, synergism | Petitioners: Enlist Duo will increase glyphosate use; EPA underestimated 2,4‑D volatility; EPA ignored possible synergy with glufosinate. | EPA/Dow: record supports no net increase in glyphosate use; choline salt 2,4‑D less volatile and supported by studies and modeling; potential mixing with glufosinate speculative and currently unlawful without testing/approval. | Court: Rejected these challenges — substantial evidence supports EPA on glyphosate, volatility, and synergism (speculative). |
| ESA consultation, "may affect," action area, and critical habitat | Petitioners: EPA’s "no effect" findings, action‑area limits, and critical‑habitat conclusions were arbitrary and lacked best available science; consultation required. | EPA: performed iterative screening, conservative risk‑quotient approach, mitigation measures, and species‑specific refinements; used best available data; no consultation required for most species. | Court: Upheld EPA’s ESA analyses (no‑effect findings, action‑area choice, and critical‑habitat conclusions); rejected ESA claims except it agreed EPA must address monarch milkweed issue under FIFRA. |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requirements for federal courts) (1992)
- Bennett v. Spear, 520 U.S. 154 (agency must use best scientific data for ESA consultations) (1997)
- Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (arbitrary and capricious review standard) (1983)
- Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 ("may affect" standard and mitigation limits) (9th Cir. 2012)
- Nat. Res. Def. Council v. EPA (Nanosilver II), 857 F.3d 1030 (substantial‑evidence review of pesticide registrations) (9th Cir. 2017)
- Friends of Santa Clara River v. United States Army Corps of Eng’rs, 887 F.3d 906 (no‑effect findings can be permissible despite exposure) (9th Cir. 2018)
- Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220 (procedural‑injury standing analysis) (9th Cir. 2008)
- Pollinator Stewardship Council v. EPA, 806 F.3d 520 (vacatur/remand‑without‑vacatur factors) (9th Cir. 2015)