The Biden EPA has asked a federal court for a chance to review and possibly revise parts of the agency's 2020 interim decision to re-register glyphosate (Roundup) while leaving the herbicide on the market.

EPA's request was filed Tuesday in the U.S. Court of Appeals for the Ninth Circuit, where it is facing a combined lawsuit from a coalition of farmworker and environmental groups, who are asking the court to vacate the registration of glyphosate entirely.

Specifically, EPA wants to reconsider its analysis of glyphosate's ecological risks and other costs of the herbicide and re-weigh them against the herbicide's benefits. However, EPA was clear in the filing that the agency will not reconsider its analysis of glyphosate's human health risks – the source of several successful lawsuits against glyphosate's primary registrant, Bayer. The agency says it is standing by its conclusions that, as registered, glyphosate doesn't pose major risks to human health and "believes that this component of its analysis should be sustained by this Court."

What it means to farmers

If EPA's request is granted by the court, it will not remove glyphosate from the market. The request is for "partial voluntary remand without vacatur," which means the herbicide would remain legally registered while the agency reviews and perhaps revises parts of its registration decision.

It's not clear how long this revision process would take, and it isn't certain that the court will grant it. First, the plaintiffs will get a chance to respond, and then the three-judge panel will decide.

How did we get here?

Under the Trump administration, EPA had issued an interim decision in January 2020 to re-register glyphosate, with some minor changes to labels and use restrictions. By March, a group of farmworker and environmental groups – including the Center for Food Safety, Natural Resources Defense Council, Beyond Pesticides, Rural Coalition, Farmworker Association of Florida and Organizacion en California de Lideres Campesinas - had filed two (now combined) lawsuits, accusing the agency of neglecting to adequately assess the herbicide's risks to human health and endangered species.

Later that year, in November, EPA released its own assessment of glyphosate's risk to endangered species, a draft biological evaluation that found that the herbicide is "likely to adversely affect" 1,676 listed species and 759 critical habitats, the vast majority of the species and habitats it considered.

The lawsuit's plaintiffs immediately seized on those findings and cited them when they filed their opening brief a month later, just before Christmas.

Now, EPA wants a chance to voluntarily reconsider its registration decision in light of a number of developments over the past year, including those draft biological evaluation findings. "While EPA cannot prejudge the outcome of its analysis, it may be that the results of EPA's biological evaluation lead it to adopt additional or different mitigation measures than those specified in the Interim Decision," the agency's petition to the court said.

EPA also asked to consider how its glyphosate registration might be affected by two other recent decisions by the Ninth Circuit. First, it cited the Ninth Circuit's ruling in July that upheld the Enlist Duo registration but ordered EPA to fix its assessment of the glyphosate-and-2,4-D premix's risk to monarch butterflies.

The second decision that could affect EPA's glyphosate decision is the Ninth Circuit's June 2020 decision to vacate three dicamba herbicides' registrations, citing the environmental, social and economic costs of off-target movement of those herbicides. EPA was somewhat cryptic on how this decision -- which sent shockwaves through the ag industry last year – might change its approach to glyphosate, stating only that: "Voluntary remand will allow EPA to consider this intervening (dicamba) decision, including whether it affects EPA's analysis of glyphosate or whether further explanation of EPA's analysis is warranted."

The EPA also cited President Joe Biden's Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis as a reason to review glyphosate's registration.

Reactions

The lawsuit's plaintiffs immediately objected to EPA's petition, stating in a news release that the agency was effectively admitting to serious mistakes in its glyphosate registration.

"Rather than defend its prior decision, at the 11th hour EPA is asking for a mulligan and indefinite delay, despite having previously spent far too long, over a decade, in re-assessing it," said George Kimbrell, legal director for the Center for Food Safety. "Worse, EPA admits its approval risks harms to farmers and endangered species but makes no effort to halt it. We will ask the Court to deny this extraordinary request to paper over glyphosate's ecological harms only to approve it anyway down the road. Time to face the music, not run and hide."

EPA said its defendant-intervenors – groups who filed to assist the agency in defending its glyphosate registration – were on board with the petition. That includes the National Association of Wheat Growers, the National Corn Growers Association, the National Cotton Council, the American Soybean Association, American Sugarbeet Growers Association, National Sorghum Producers, American Farm Bureau, Agricultural Retailers Association, National Association of Landscape Professionals, Golf Course Superintendents Association of America and Monsanto (a legal entity now owned by Bayer).