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9th Circuit sends herbicide debate back to the EPA

Kim Bousquet Aaron Banks February 16, 2016

As discussed in our December 2015 Food Fight blog entry, the EPA asked the 9th Circuit to vacate its own prior decision to register Dow’s herbicide, Enlist Duo. The 9th Circuit recently denied that request and remanded the case to the EPA. The 9th Circuit’s order was short — only three sentences long — as the Court elected not to specifically address any of the EPA’s arguments on vacating the registration, or comments related to Dow’s patent application. Instead, the case will be remanded to the EPA, where it will likely undergo additional consideration.

Gina McCarthy, U.S. EPA Administrator, testified before the U.S. House of Representatives Committee on Agriculture on February 11, 2016. During the hearing, McCarthy was asked why the agency took such an “unusual step” in “trying to use the courts as a means of regulation.” McCarthy explained that the EPA found itself in an “awkward situation” with respect to Enlist Duo, stating: “after the decision [to register Duo] was made, while it was being challenged in court by those that disagreed with our registration, we identified information that the manufacturer, Dow themselves, had put out in other public venues that raised concern that we had did not have the full science data to make the decision in the most solid way we could and actually address what might be synergistic effects. So instead of waiting for the court to tell us that we had failed in our science decision, we wanted an ability to take that back to work with Dow to get additional information to address the issue and to move it forward again. Which is exactly what we’re doing.”

McCarthy believes that the process it took will allow the EPA to reach a final decision on Enlist Duo “much more quickly.” A video recording of McCarthy’s testimony is available here.

Congress enacted the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to regulate the use of pesticides in the United States. See 7 U.S.C. §§ 136–136y (2015). But if, at any time, the EPA believes a registered pesticide fails to meet this standard, the EPA has the ability to initiate an administrative hearing to cancel the registration by publishing a “Notice of Intent to Cancel” (NOIC). See § 136d(b)(1).

So, for now, the future of Enlist Duo and Dow’s Enlist crop production system remains uncertain. We will continue to keep you updated as this legal battle unfolds.

Aaron Banks is an associate in Thompson Coburn’s Business Litigation practice. Kimberly Bousquet is a partner in Thompson Coburn’s Business Litigation practice.