The 9th Circuit Court of Appeals has struck down the U.S. Environmental Protection Agency’s decision to allow continued, widespread use of glyphosate, an herbicide commonly known as RoundUp. The opinion was prompted by a lawsuit brought by NRDC, Pesticide Action Network North America (PANNA), and a coalition of groups represented by attorneys at the Center for Food Safety (“Rural Coalition”).
Below are three key takeaways from this important victory for people and the environment, which forces EPA to re-assess the harms of glyphosate and may result in significant restrictions on its use. But first, some background:
What is glyphosate?
Glyphosate is an herbicide that is used on huge swaths of the country and is linked with a wide variety of harms to people, pollinators, and ecosystems. Two are particularly salient. First, glyphosate has been linked with an increased risk of non-Hodgkin’s lymphoma, a cancer that afflicts parts of the immune system. Because of these links, the International Agency for Research on Cancer (IARC) in 2015 categorized glyphosate as “probably carcinogenic to humans.”
Second, widespread use of glyphosate has devastated milkweed plants that once blanketed much of the country, providing critical forage for the imperiled Monarch butterfly. Glyphosate’s use has been identified as a driving factor in the steep declines in these iconic pollinators.
What prompted this lawsuit?
The Federal Insecticide Fungicide and Rodenticide Act (FIFRA), the federal statute that governs pesticide approval, requires EPA to re-assess glyphosate’s risks and ensure that its use does not cause “unreasonable adverse effects on the environment.” Through this reassessment process, called “registration review,” EPA has an obligation to restrict use of glyphosate where harms to people and wildlife are not clearly justified by glyphosate’s benefits.
In January of 2020, despite glyphosate's widespread harms, EPA came out with a decision that largely maintained the status quo. It permitted continued glyphosate use across the country with no meaningful changes to how this harmful chemical is used. As a result, NRDC and our partners sued to throw out this faulty analysis and to rein in glyphosate’s use.
NRDC and PANNA argued that EPA’s decision, which was based on a cursory and incomplete cost-benefit analysis of glyphosate, was fundamentally flawed. For instance, we argued that EPA ignored serious risks of glyphosate’s use and that EPA failed meaningfully to compare glyphosate’s risks with its benefits.
After the Biden Administration came into office, it decided not to fight these claims. Instead, it asked the Court to send its ecological determination back to the agency for re-consideration. We urged the court to set a deadline for this reconsideration to ensure that our serious concerns were addressed quickly.
Meanwhile, EPA continued to defend its conclusions about human health and its failure to analyze the effects of its decision under the Endangered Species Act.
Three Takeaways from the 9th Circuit’s Decision
- The Court rejected EPA’s finding that glyphosate does not cause cancer. EPA concluded that glyphosate’s use does not present any risks to human health. Critically, it found that glyphosate is “not likely to be carcinogenic to humans,” disagreeing with IARC’s 2015 conclusion. In the lawsuit, Rural Coalition petitioners argued that this conclusion contradicted EPA’s earlier findings about glyphosate’s cancer risk, as well as EPA’s own guidance about how it should conduct a cancer assessment. The Court agreed—and threw out EPA’s human health risk assessment. EPA must now revisit its cancer determination and release a revised assessment.
- EPA violated the Endangered Species Act. The ESA requires that all agencies analyze the effects of their actions on endangered and threatened species. This analysis must occur before the action so agencies can ensure that their actions are not likely to jeopardize those species. The Court held that EPA violated this mandate by issuing its decision before performing the required analysis. Notably, EPA has since started the required ESA process and determined that glyphosate’s use likely harms nearly 1700 threatened species—over 90% of those listed. This is the kind of information that should have been central to EPA’s decision of whether to allow continued glyphosate use.
- EPA must re-issue its ecological assessment by October 2022. EPA’s request to re-assess the ecological piece of its analysis threatened to delay its decision for years. Meanwhile, glyphosate would have remained on the market without an adequate assessment of its effects. The Court rejected EPA’s request for an open-ended remand, instead requiring the agency to issue its assessment by October of 2022. At that point, EPA will either address the serious deficiencies raised by NRDC and PANNA, or we will be back in court.
These are all huge victories, but the fight is not over. The Court’s decision is critical because EPA now has to go back and re-do major parts of its analysis that supported continued use of this harmful chemical. Had the Court sided with EPA, we would have been stuck with widespread glyphosate use for at least another fifteen years—the next time EPA will do a similar re-assessment. Now, EPA’s revised analysis might require serious restrictions on how, where, and when glyphosate can be used. NRDC stands ready to ensure that happens.