9th Circuit Court Eviscerates EPA Over Pesticide Approval

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Pesticides and food production go hand in hand. The battle to control pests that destroy food crops has become politicized in recent years by chemical companies anxious to lock farmers into agricultural practices that require them to use their products. Here’s how it works. First you develop a pesticide. Then you develop crops that are resistant to the pesticide.

Once you’ve done that, you have farmers beholden to you forever. Then can only grow crops from seeds you supply and they can only control invasive species that attack their crops with your pesticides. It’s the perfect circular economy, with the chemical companies getting paid at every step along the way. Sweet!

What is not so sweet is that unless you are using a company’s specially genetically engineered seeds, your crops are destroyed by the pesticides. And those pesticides have a way of not staying where they are put but drifting far and wide under certain circumstances, causing great economic harm to those who are not part of the beautiful closed loop system the companies have created.

The Environmental Protection Agency is supposed to be concerned with — you know — the environment and stuff. But under Tramp, it has become nothing more than a stooge for corporations looking to fatten their wallets at public expense. It has downgraded its scientific panels and replaced them with lobbyists. When it decided to permit companies like BASF, CropScience (formerly Monsanto), and Corteva (formerly DuPont) to continue using their specialized pesticides known as dicamba, opponents sued.

That was in 2018. This week, the 9th Circuit Court of Appeals agreed with the plaintiffs and excoriated the EPA in an opinion that can only be described as a scathing rebuke. Here’s an excerpt:

[W]e hold that the EPA substantially understated risks that it acknowledged and failed entirely to acknowledge other risks. The EPA substantially understated three risks that it acknowledged. The EPA substantially understated the amount of DT seed acreage that had been planted in 2018, and, correspondingly, the amount of dicamba herbicide that hadn’t been sprayed on post-emergent crops.

Further, the EPA purported to be agnostic as to whether formal complaints of dicamba damage under-reported or overreported the actual damage, when record evidence clearly showed that dicamba damage was substantially under-reported. Finally, the EPA refused to estimate the amount of dicamba damage, characterizing such damage as “potential” and “alleged,” when record evidence showed that dicamba had caused substantial and undisputed damage.

The EPA also entirely failed to acknowledge three other risks. The EPA entirely failed to acknowledge record evidence showing the high likelihood that restrictions on OTT dicamba application imposed by the 2018 label would not be followed. The EPA based its registration decision on the premise that the label’s mitigation measures would limit off-field movement of OTT dicamba. These measures became increasingly restrictive with each iteration of OTT dicamba labels.

Record evidence shows that the restrictions on the 2016 and 2017 labels had already been difficult if not impossible to follow for even conscientious users; the restrictions on the 2018 label are even more onerous. Further, the EPA entirely failed to acknowledge the substantial risk that the registrations would have anticompetitive economic effects in the soybean and cotton industries.

Finally, the EPA entirely failed to acknowledge the risk that OTT dicamba use would tear the social fabric of farming communities.

That last sentence is damning. It’s equivalent to being taken to the woodshed for a severe thrashing. Will it have any impact on the despicable Andrew Wheeler and his minions at EPA? Don’t bet on it. A spokesperson for the agency said simply the agency was currently reviewing the court decision and “will move promptly to address the court’s directive,” according to The Guardian.

“Today’s decision is a massive win for farmers and the environment,” said George Kimbrell, legal counsel for the Center for Food Safety and lead counsel in the case. “It is good to be reminded that corporations like Monsanto and the Trump administration cannot escape the rule of law, particularly at a time of crisis like this. Their day of reckoning has arrived.”

If the chemical companies were at all chastened by the court’s ruling, you wouldn’t know it from their reaction to the court’s ruling. BASF called the court order “unprecedented” and said it “has the potential to be devastating to tens of thousands of farmers. We will use all legal remedies available to challenge this order,” it said. Those remedies are now familiar to most people. The defendants can ask for a review by all the judges of the 9th Circuit Court of Appeals instead of just the three judges who issued this ruling. If that doesn’t work, they can ask for relief from the US Supreme Court, where two of the sitting justices are recent Tramp appointees.

The larger question here is whether other courts will have such a stern view of the shenanigans promoted by the EPA during the reign of terror presided over by former coal lobbyist Andrew Wheeler. Several states have sued the EPA over its rollback of auto emissions rules, alleging a similar disdain for science and a propensity to cook the books to satisfy an anti-environment agenda.

Also this week, the Trampler In Chief announced all new infrastructure projects in America would be exempt from all environmental reviews, arguing that America needs to get back to work more than it needs clean water and clean air. The courts are the last bastion against chicanery at the highest levels, especially since Republicans in Congress refuse to relinquish their liplock on the president’s ample buttocks, despite his egregious and outrageous behavior of late.

Changing the makeup of the courts is the highest priority for Republicans right now. They are calling for senior federal judges to retire while they still control the Senate so they can jam more right wing ideologues onto the federal bench before the voters have a chance to weigh in next November.

It is also why they are so hot and bothered about getting Justin Walker, the full-throated arch conservative protegé of Despicable Mitch McConnell, onto the DC Circuit Court of Appeals as soon as possible. The DC court is where most of the legal challenges to federal policy are filed. If confirmed, Walker can be counted on to aggressively promote a right wing agenda that advocates for little to no government oversight for the next 40 to 50 years from his seat on the bench.

Despite the appalling behavior of the #FakePresident in the last week, none of the spineless Republicans in the Senate are expected to raise a peep of protest to Walker’s nomination. The decision by the 9th Circuit is a hopeful sign for environmentalists who would like to avoid destroying Planet Earth with human-created pollution, but there is a long, long way to go yet.

Image credit: Bayer

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Steve Hanley

Steve writes about the interface between technology and sustainability from his home in Florida or anywhere else The Force may lead him. He is proud to be "woke" and doesn't really give a damn why the glass broke. He believes passionately in what Socrates said 3000 years ago: "The secret to change is to focus all of your energy not on fighting the old but on building the new." You can follow him on Substack and LinkedIn but not on Fakebook or any social media platforms controlled by narcissistic yahoos.

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