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National Family Farm Coalition v. U.S. Environmental Protection Agency

ELR Citation: 50 ELR 20178
Nos. 17-70810, (9th Cir., 07/22/2020)

The Ninth Circuit granted in part one petition to review and denied another petition to review EPA's 2014, 2015, and 2017 decisions to register a pesticide that combines two chemicals—2,4-dichlorophenoxyacetic acid (2,4-D) choline salt and glyphosate—to kill weeds on corn, soybean, and cotton fields. The petitioners argued that EPA misapplied FIFRA's procedural requirements by applying its "cause any unreasonable adverse effects" unconditional registration standard in the 2017 decision rather than the "significantly increase the risk of any unreasonable adverse effect" conditional registration standard, and lacked substantive evidence in support of its decision that the registration complied with those requirements. The court found that any error by EPA in citing the wrong standard was harmless because the standard for unconditional registration was higher, not lower, than the conditional standard. It further found that substantial evidence supported the Agency's conclusions that its decisions would not increase the overall use of glyphosate and that the volatility of 2,4-D choline salt would not cause unreasonable adverse effects on the environment, but that the Agency failed to consider risks to monarch butterflies caused by treatment of milkweed on target fields. The petitioners also argued EPA violated the ESA's consultation procedures in registering the pesticide. The court found that EPA did what the ESA required it to do—assess risks to determine whether the exposure of protected species and critical habitat to potentially harmful chemicals would have any possible effect—and thus that its "no effect" findings and adoption of mitigation measures were not arbitrary or capricious. It therefore granted in part and denied in part one petition as to FIFRA, denied the other petition as to both the ESA and FIFRA, and remanded to EPA.