On April 12, 2023, the plaintiffs in Ctr. for Biological Diversity v. U.S. Envtl. Protection Agency, No. 4:20-cv-00555 (D. Ariz.), a lawsuit challenging the Environmental Protection Agency’s (“EPA”) December 2020 decision to register the pesticide dicamba for use directly onto crops, filed a motion for summary judgment, claiming that EPA’s decision violated the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) and the Endangered Species Act (“ESA”). The plaintiffs also claim that EPA rushed the December 2020 registration decision, violating mandatory procedures in the process. Accordingly, the plaintiffs have asked the court to vacate the registration.
This is not the first time these plaintiffs have challenged an EPA decision to register dicamba products for use directly onto crops. In June 2020, the Ninth Circuit Court of Appeals issued a decision overturning EPA’s 2018 dicamba registration decision after the same plaintiffs raised similar arguments that the 2018 registration decision violated FIFRA and the ESA.
Background
In the United States, FIFRA is the primary federal statute regulating pesticide use, sale, and distribution. No pesticide may be used or sold in the United States until the EPA has approved a label and registered the pesticide for use under FIFRA. Importantly, before EPA may register a pesticide for any purpose, it must conclude that using the pesticide according to the instructions on the label “will not generally cause unreasonable adverse effects on the environment.” 7 U.S.C. § 136a(c)(5)(C). FIFRA defines “unreasonable adverse effects on the environment” to include: “(1) any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide[.]” 7 U.S.C. § 136(bb). This is known as the “no unreasonable adverse effects” standard.
There are two basic types of registration that a pesticide can receive – conditional and unconditional. When EPA issues an unconditional registration, it means that the Agency does not require any additional data to make its determination. Conditional registrations are granted when EPA determines that, although an application for registration lacks a certain amount of the required data, use of the pesticide will not violate the “no unreasonable adverse effects” standard in the amount of time needed to generate the missing data.
Dicamba is an herbicide that is used to target broad-leafed plants. It has gained popularity in recent years as a method of combating weeds that have grown resistant to glyphosate, including palmer amaranth which is commonly known as pigweed. Historically, dicamba was approved for use as a pre-emergent, meaning that it could only be applied to the ground in late winter or early spring prior to crops being planted. This was due to dicamba’s high tendency to volatize, meaning droplets would evaporate into the air and drift far off-target. However, in 2016, EPA approved a conditional registration allowing new, low-volatility formulations of dicamba to be used directly on crops (aka “over-the-top” use) for the first time. The 2016 dicamba conditional registration was set to expire after two years. In 2018, EPA approved another two-year conditional registration for over-the-top use of dicamba.
Both the 2016 and 2018 registration decisions generated lawsuits, and in June 2020, the Ninth Circuit Court of Appeals issued a ruling vacating the 2018 registration decision for violating FIFRA. Specifically, the Ninth Circuit found that EPA had wrongly concluded that registering dicamba for over-the-top use would not cause unreasonable adverse effects on the environment. According to the Ninth Circuit, EPA either understated or failed to acknowledge a variety of risks. A more detailed overview of that decision is available here.
Following the Ninth Circuit’s decision, EPA issued a cancel order for its registration of over-the-top use of dicamba. When a cancel order is issued, a pesticide is no longer registered under FIFRA, and it becomes illegal to sell or use that pesticide. That cancel order was issued in June 2020, and in December of that same year, EPA approved an unconditional registration of dicamba for over-the-top use that is set to last through 2025.
The same plaintiffs that successfully overturned the 2018 registration filed a new lawsuit to challenge the 2020 registration, making many of the same arguments that they made in their previous lawsuit. While the case was initially paused after the Biden administration took office, the plaintiffs recently submitted a motion for summary judgment asking the court to overturn the 2020 registration.
Current Case
In their motion for summary judgment, the plaintiffs in Ctr. for Biological Diversity v. U.S. Envtl. Protection Agency make three main arguments: (1) the 2020 dicamba registration decision violates FIFRA; (2) the 2020 dicamba registration decision violates the ESA; and (3) the 2020 dicamba registration decision violates mandatory rulemaking procedures.
FIFRA Claims
While the plaintiffs claim that the 2020 registration decision contained numerous FIFRA violations, two primary arguments stand out. First, the plaintiffs argue that the 2020 registration decision failed to address the FIFRA violations identified by the Ninth Circuit in its June 2020 decision. In its decision, the Ninth Circuit found that the 2018 dicamba registration decision had violated FIFRA by approving a 40-page label that was so complex, farmers could not follow the use directions while also controlling weeds; by failing to fully consider the economic costs of crops lost to dicamba damage; and by failing to take into account the social costs of approving dicamba for over-the-top use. According to the plaintiffs, EPA failed to address any of these violations in the 2020 registration decision. While the plaintiffs primarily allege that EPA once again failed to address or quantify the possible economic and social impacts of registering dicamba for over-the-top use, they also claim that EPA increased the risk that farmers would be unable to follow use directions by approving an even longer label than that approved in 2018.
Next, the plaintiffs claim that the 2020 registration decision does not meet FIFRA’s unconditional registration requirements. As previously mentioned, for a pesticide to be registered under FIFRA, EPA must make a finding that use of the pesticide in its intended manner will not cause “unreasonable adverse impacts on the environment.” Additionally, to grant an unconditional registration, EPA must also make a finding that “no additional data” is needed to make a final registration decision. The plaintiffs argue that EPA failed to meet either of these standards. First, the plaintiffs addressed the “no additional data” standard. The plaintiffs note that when EPA conditionally registered dicamba for over-the-top use in 2018, the Agency conditioned that registration on the receipt of additional studies, data, and monitoring. According to the plaintiffs, EPA did not provide any reasoning for why it did not continue to require similar data and monitoring in its 2020 decision. The plaintiffs also note that in a report released by EPA in 2021, the Agency states that much of the data and assessments relied on for the 2018 registration decision had not been developed according to EPA’s normal procedures. Required internal peer review of scientific documents had not been conducted, and certain senior management officials were more involved with the 2018 registration decision than was typical. More information on that report is available here. Because the 2020 decision relied on much of the same data as the 2018 decision, the plaintiffs claim that the decision does not meet the “no additional data” standard.
The plaintiffs also claim that the 2020 decision fails to meet the “no unreasonable adverse effects” standard. To successfully meet that standard, EPA must determine that a pesticide will not cause “unreasonable adverse impacts on the environment” when used for its intended function according to the label. The plaintiffs claim that the 40-page label registered by EPA in 2020 makes meeting this standard “near impossible” because the complexity of the label makes it difficult for applicators to use the dicamba products legally. Finally, the plaintiffs claim that even when the products were applied according to the label, damage from dicamba that had drifted off-target still occurred. Therefore, the plaintiffs argue, the “no unreasonable adverse effects” standard has not been met.
ESA Claims
Along with numerous FIFRA claims, the plaintiffs’ motion for summary judgement also raises a series of ESA claims. According to the plaintiffs, the 2020 registration decision violates the ESA by applying the incorrect standard for determining whether the decision would harm listed species; by considering an inaccurate “action area”; and by failing to consider harm to critical habitat.
Under the ESA, federal agencies are required to examine all of their proposed actions to determine the impacts those actions will have on species listed as either threatened or endangered under the ESA. If an agency finds that its action “may affect” a listed species, it must reach out to either Fish and Wildlife Service or the National Marine Fisheries Service for consultation to determine what, if any, mitigation measures are appropriate. The plaintiffs claim that EPA failed to apply the “may affect” standard when it determined that approving dicamba for over-the-top use in 2020 would not have any effects on listed species. Instead, EPA applied the FIFRA “no unreasonable adverse effects” standard. The FIFRA standard is a balancing test that requires EPA to weigh the risks and benefits of the decision, while the ESA “may affect” standard is a bright-line test that focuses solely on whether listed species will be impacted by the decision. The plaintiffs argue that by applying the wrong standard, the 2020 decision violates the ESA. Importantly, in 2022 EPA announced that it would no longer be applying the FIFRA standard when conducting ESA analysis for pesticide registration decisions. One of the reasons EPA cited for the policy change was court decisions which concluded that applying the FIFRA standard instead of the ESA standard was a violation of the ESA.
Next, the plaintiffs claim that the 2020 decision violates the ESA because EPA considered an incorrect “action area.” When agencies consider the impact of proposed actions on listed species, the scope of that analysis should include the “action area,” which is defined as “all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action.” 50 C.F.R. § 402.02. The plaintiffs claim that EPA violated this requirement by determining that the impacts of over-the-top dicamba application are limited to the fields where it is applied and to a 57-foot buffer zone around the application site. According to the plaintiffs, this contradicts evidence that dicamba can volatilize and drift up to 443 feet away from the initial application area. Therefore, the plaintiffs argue that the 2020 decision violates the ESA because EPA should have examined a larger action area when making its ESA determination.
Finally, the plaintiffs argue EPA’s determination that the 2020 registration decision would not impact any designated critical habitat also violated the ESA. When a species is listed under the ESA, it may receive an accompanying critical habitat designation. According to the ESA, critical habitat contains “physical or biological features […] essential to the conservation of the species and which may require special management considerations or protection[.]” 16 U.S.C. § 1532(5)(A). Along with considering the impacts of proposed agency actions on listed species, federal agencies are also required to consider the impacts their actions will have on critical habitat. 16 U.S.C. § 1536(a)(2). Here, the plaintiffs claim that EPA failed to consider how the 2020 registration decision would impact critical habitat by limiting its analysis just to the fields where dicamba would be applied. According to the plaintiffs, the tendency of dicamba to volatilize means that EPA should have considered a larger action area when determining the impact that the 2020 decision would have on critical habitat.
Procedural Claims
The last main argument raised by the plaintiffs in Ctr. for Biological Diversity v. U.S. Envtl. Protection Agency is that the 2020 registration decision violates mandatory rulemaking procedures. Specifically, the plaintiffs claim that the 2020 decision violates certain FIFRA rulemaking requirements, as well as notice-and-comment procedure.
According to the plaintiffs, the 2020 decision violates the process outlined in FIFRA for “un-canceling” a previously cancelled pesticide. After the Ninth Circuit issued its decision overturning the 2018 registration in 2020, EPA issued a cancel order for the affected dicamba products. After a pesticide registration goes through cancellation, FIFRA requires EPA to go through a specific process to re-register the pesticide. 40 C.F.R. §§ 152.100(b), 164.130-164.133. Primarily, the process requires EPA to determine whether reconsideration of the cancellation decision is warranted. Reconsideration may be warranted if EPA finds “substantial new evidence” that was not available at the time the cancellation decision was issued. 40 C.F.R. § 164.131. The plaintiffs claim that the 2020 registration decision violates this procedural element of FIFRA because EPA did not make the required “substantial new evidence” finding. Instead, EPA re-registered dicamba for over-the-top use as though a cancellation order had never been issued.
Lastly, the plaintiffs claim that the 2020 registration decision violated notice-and-comment rulemaking requirements. When a federal agency issues a rule or regulation, it is typically required to give the public a certain amount of time to comment on a draft of the proposed rule. Additionally, the Ninth Circuit ruled in Center for Food Safety v. Regan, 56 F.4th 648 (9th Cir. 2022), that it is a violation of FIFRA if EPA fails to provide notice-and-comment before re-approving a pesticide use that has been previously vacated by a court. The plaintiffs claim that because the 2020 registration decision was issued without a notice-and-comment period, the decision is unlawful.
Conclusion
Based on the arguments discussed above, the plaintiffs in Ctr. for Biological Diversity v. U.S. Envtl. Protection Agency have asked the court to issue an opinion vacating the 2020 registration decision. Should the court grant that request, the dicamba products targeted by the lawsuit would no longer be available for over-the-top use. If that occurs, it is unclear how long it would take EPA to re-register the products. Currently, EPA has a backlog of pesticide registration decisions awaiting ESA analysis. According to a statement from EPA, the pesticides with court-enforceable ESA analysis deadlines alone could “likely fill the Agency’s ESA workload well beyond 2030.” Should the court vacate the 2020 decision with a requirement for EPA to come into full FIFRA and ESA compliance prior to re-registration, it is unclear what EPA’s timeline would be.
At the time this article was published, EPA had yet to file a response to the plaintiffs’ motion for summary judgment. This lawsuit is on-going, and NALC will continue to provide updates as it develops.
To read the plaintiffs’ motion for summary judgment in Ctr. for Biological Diversity v. U.S. Envtl. Protection Agency, click here.
To read the text of FIFRA, click here.
To read the text of the ESA, click here.
For more National Agricultural Law Center resources on pesticides, click here.
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Author: Brigit Rollins
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