WILL REGULATORS CATCH THE DRIFT? NFFC V. EPA AND BREATHING NEW LIFE INTO PESTICIDE REGULATION
In the past half-century, U.S. agriculture has become dramatically more industrialized, consolidated, and bifurcated between livestock and crop agriculture, resulting in significant negative environmental, health, and socioeconomic effects. One pillar propping up this unsustainable industrial model...
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| description | In the past half-century, U.S. agriculture has become dramatically more industrialized, consolidated, and bifurcated between livestock and crop agriculture, resulting in significant negative environmental, health, and socioeconomic effects. One pillar propping up this unsustainable industrial model is heavy reliance on synthetic pesticides and fertilizers, chemical inputs necessary for large monoculture production. In the most recent twenty-first-century version of this ever-entrenching paradigm, pesticide companies sell a seed/pesticide cropping system, comprised of crops genetically engineered (GE) to resist multiple pesticides, allowing “over the top” spraying at new times of the year and in new ways. These crop systems have significantly increased the pesticide load on our foods and into our environment, creating huge externalized environmental and health costs.
Pesticides are toxic substances intended to harm or kill. Yet, stakeholders best characterize current federal pesticide regulation under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) not by its rigor but by its weaknesses and loopholes. The U.S. Environmental Protection Agency (EPA), charged with administering FIFRA, increasingly approves new uses and variations of pesticides without fully taking into account the consequences these chemical cocktails have on public health, farmers, and our most imperiled species. This includes conditionally approving pesticides despite lacking vital data showing their safety and limiting the scope of agency review when it is applied. When EPA chooses to bend to the whim of powerful agrochemical corporations instead of truly evaluating the potential risks, environmentalists, farmers, and farmworker groups often turn to the courts to challenge EPA’s pesticide approvals.
A recent case, National Family Farm Coalition v. EPA (NFFC), 960 F. 3d 1120 (9th Cir. 2020), presented these issues in stark relief. Dicamba (3,6-dichloro-2-methoxybenzoic acid) is a broad-spectrum herbicide. Dicamba is an effective weed killer, but its toxicity is not limited to weeds. It can also kill many desirable broadleaf plants, bushes, and trees. And it has a well-known drawback: dicamba is volatile, moving easily off a field on which a farmer has sprayed it. As a result of its toxicity and its tendency to drift, dicamba has historically been limited to clearing fields of weeds, either before crops were planted or before newly planted crops emerged. This changed in 2016: |
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Pesticides are toxic substances intended to harm or kill. Yet, stakeholders best characterize current federal pesticide regulation under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) not by its rigor but by its weaknesses and loopholes. The U.S. Environmental Protection Agency (EPA), charged with administering FIFRA, increasingly approves new uses and variations of pesticides without fully taking into account the consequences these chemical cocktails have on public health, farmers, and our most imperiled species. This includes conditionally approving pesticides despite lacking vital data showing their safety and limiting the scope of agency review when it is applied. When EPA chooses to bend to the whim of powerful agrochemical corporations instead of truly evaluating the potential risks, environmentalists, farmers, and farmworker groups often turn to the courts to challenge EPA’s pesticide approvals.
A recent case, National Family Farm Coalition v. EPA (NFFC), 960 F. 3d 1120 (9th Cir. 2020), presented these issues in stark relief. Dicamba (3,6-dichloro-2-methoxybenzoic acid) is a broad-spectrum herbicide. Dicamba is an effective weed killer, but its toxicity is not limited to weeds. It can also kill many desirable broadleaf plants, bushes, and trees. And it has a well-known drawback: dicamba is volatile, moving easily off a field on which a farmer has sprayed it. As a result of its toxicity and its tendency to drift, dicamba has historically been limited to clearing fields of weeds, either before crops were planted or before newly planted crops emerged. This changed in 2016: despite scientists and farmers raising significant concerns, EPA conditionally registered new, over-the-top dicamba pesticide spraying as the “next generation” of pesticide-resistant cropping systems. That first-ever such approval led to 20 million more pounds of dicamba sprayed annually, a twenty-three-fold increase, across approximately 50 million acres at new times of the year and in novel ways.
EPA’s approval created a debacle that agronomists say is unprecedented in the history of U.S. agriculture: the spraying of massive amounts of dicamba resulted in millions of acres of crops, trees, and wild plants damaged by dicamba spray droplets drifting off-field during application; dicamba vapor clouds damaged vast fields from fencerow to fencerow; dicamba-laced water ran off sprayed fields; and even rainfall was contaminated in areas of intensive use. Millions of acres of off-field dicamba drift and runoff resulted in widespread destruction of crops, economic losses, social upheaval to rural communities, and harm to endangered species and other wildlife.
Environmentalists and farmers challenged the approval decision in 2016. After four years of litigation, in summer 2020, the U.S. Court of Appeals for the Ninth Circuit issued a detailed fifty-sixpage opinion carefully analyzing the voluminous record evidence and holding that EPA violated FIFRA in no less than six ways, grounds upon which the Court then completely vacated the registration as unlawfully issued. The Court concluded that EPA violated FIFRA by substantially underestimating several important risks and costs, including the amount of dicamba sprayed, the number of injury reports, and the amount and costs of crop damage. The Court also held that EPA completely failed to consider and account for several other costs, such as economic losses ensuing from anti-competitive, monopolistic effects of the registrations, as well as the social costs of strife and dissension in farming communities triggered by rampant off-target dicamba damage to neighbors’crops. Finally, the Court held that EPA violated FIFRA by predicating its core conclusion that its approval would have no adverse economic and environmental effects on mitigation measures—in the form of weather-related use restrictions—that substantial record evidence demonstrated were so extreme that farmers could not both follow the mitigation measures and have any hope of controlling weeds. EPA failed to consider and analyze whether following those directions was possible in real-world farming conditions. All of these were precedential FIFRA holdings.
While the dicamba drift damage story is dramatic, EPA’s mistakes and unlawful regulatory approach were not singular; instead, they are emblematic of systemic, longstanding poor pesticide oversight. Make no mistake, the needed remedy is nothing short of a complete overhaul of EPA’s mission with regard to pesticides and, with it, modern, twenty-first-century legislation to address twentyfirst-century agricultural challenges. However, in the absence of the political will for such changes, the NFFC precedent, and a few other important current and past cases, provide the chance to substantially improve pesticide regulation going forward and breathe some longoverdue and badly needed new life into its old statutory bones.
Part II of this Article provides a brief history of pesticides and modern industrial agriculture, its current iteration of crop systems engineered with resistance to multiple pesticides, and the adverse impacts of this pesticide-promoting system on health and the environment. Part III sets forth how pesticides are regulated under FIFRA, its implementing regulations, and the EPA modus operandi. It summarizes the many problems in the regulatory structure and implementation, including its limited scope, regulatory loopholes, lack of transparency, industry capture/bias, lack of enforcement, and limiting judicial interpretation. Part IV presents the case study of NFFC v. EPA and discusses the import of its holdings. Part V places the NFFC case in the broader context of developing pesticide litigation and law, and the legal and cultural battle for the future of our food. This Article concludes on a cautiously optimistic note, as NFFC and other similar cases may be the leading edge needed to create long-overdue improvements to pesticide regulation for the betterment of health and environmental protection.</description><identifier>ISSN: 0046-2276</identifier><language>eng</language><publisher>Portland: Lewis & Clark Law School</publisher><subject>Agricultural economics ; Agricultural engineering ; Agriculture ; Agrochemicals ; Appeals ; Bones ; Bushes ; Clouds ; Company business management ; Constraining ; Costs ; Crop damage ; Crops ; Damage ; Drift ; Economic impact ; Economics ; Endangered species ; Environmental effects ; Environmental law ; Environmental management ; Environmental protection ; Environmental regulations ; Environmentalists ; Family farms ; Farmers ; Farming ; Federal court decisions ; Fertilizers ; Fungicides ; Genetic engineering ; Government regulation ; Herbicides ; Insecticides ; Laws, regulations and rules ; Legislation ; Litigation ; Livestock ; Management ; Methods ; Mitigation ; Occupational health ; Pesticide toxicity ; Pesticides ; Pesticides policy ; Pesticides regulation ; Public health ; Regulation ; Rodenticides ; Runoff ; Spraying ; Toxicity ; Trees ; Weeds ; Wildlife</subject><ispartof>Environmental law (Portland, Ore.), 2021-08, Vol.51 (3), p.667-743</ispartof><rights>COPYRIGHT 2021 Lewis & Clark Northwestern School of Law</rights><rights>Copyright Lewis and Clark College, Northwestern School of Law Summer 2021</rights><woscitedreferencessubscribed>false</woscitedreferencessubscribed></display><links><openurl>$$Topenurl_article</openurl><openurlfulltext>$$Topenurlfull_article</openurlfulltext><thumbnail>$$Tsyndetics_thumb_exl</thumbnail><linktopdf>$$Uhttps://www.jstor.org/stable/pdf/48628531$$EPDF$$P50$$Gjstor$$H</linktopdf><linktohtml>$$Uhttps://www.jstor.org/stable/48628531$$EHTML$$P50$$Gjstor$$H</linktohtml><link.rule.ids>314,776,780,799,57992,58225</link.rule.ids></links><search><creatorcontrib>Kimbrell, George</creatorcontrib><creatorcontrib>Wu, Sylvia</creatorcontrib><creatorcontrib>Leonard, Audrey</creatorcontrib><title>WILL REGULATORS CATCH THE DRIFT? NFFC V. EPA AND BREATHING NEW LIFE INTO PESTICIDE REGULATION</title><title>Environmental law (Portland, Ore.)</title><addtitle>Environmental Law</addtitle><description>In the past half-century, U.S. agriculture has become dramatically more industrialized, consolidated, and bifurcated between livestock and crop agriculture, resulting in significant negative environmental, health, and socioeconomic effects. One pillar propping up this unsustainable industrial model is heavy reliance on synthetic pesticides and fertilizers, chemical inputs necessary for large monoculture production. In the most recent twenty-first-century version of this ever-entrenching paradigm, pesticide companies sell a seed/pesticide cropping system, comprised of crops genetically engineered (GE) to resist multiple pesticides, allowing “over the top” spraying at new times of the year and in new ways. These crop systems have significantly increased the pesticide load on our foods and into our environment, creating huge externalized environmental and health costs.
Pesticides are toxic substances intended to harm or kill. Yet, stakeholders best characterize current federal pesticide regulation under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) not by its rigor but by its weaknesses and loopholes. The U.S. Environmental Protection Agency (EPA), charged with administering FIFRA, increasingly approves new uses and variations of pesticides without fully taking into account the consequences these chemical cocktails have on public health, farmers, and our most imperiled species. This includes conditionally approving pesticides despite lacking vital data showing their safety and limiting the scope of agency review when it is applied. When EPA chooses to bend to the whim of powerful agrochemical corporations instead of truly evaluating the potential risks, environmentalists, farmers, and farmworker groups often turn to the courts to challenge EPA’s pesticide approvals.
A recent case, National Family Farm Coalition v. EPA (NFFC), 960 F. 3d 1120 (9th Cir. 2020), presented these issues in stark relief. Dicamba (3,6-dichloro-2-methoxybenzoic acid) is a broad-spectrum herbicide. Dicamba is an effective weed killer, but its toxicity is not limited to weeds. It can also kill many desirable broadleaf plants, bushes, and trees. And it has a well-known drawback: dicamba is volatile, moving easily off a field on which a farmer has sprayed it. As a result of its toxicity and its tendency to drift, dicamba has historically been limited to clearing fields of weeds, either before crops were planted or before newly planted crops emerged. This changed in 2016: despite scientists and farmers raising significant concerns, EPA conditionally registered new, over-the-top dicamba pesticide spraying as the “next generation” of pesticide-resistant cropping systems. That first-ever such approval led to 20 million more pounds of dicamba sprayed annually, a twenty-three-fold increase, across approximately 50 million acres at new times of the year and in novel ways.
EPA’s approval created a debacle that agronomists say is unprecedented in the history of U.S. agriculture: the spraying of massive amounts of dicamba resulted in millions of acres of crops, trees, and wild plants damaged by dicamba spray droplets drifting off-field during application; dicamba vapor clouds damaged vast fields from fencerow to fencerow; dicamba-laced water ran off sprayed fields; and even rainfall was contaminated in areas of intensive use. Millions of acres of off-field dicamba drift and runoff resulted in widespread destruction of crops, economic losses, social upheaval to rural communities, and harm to endangered species and other wildlife.
Environmentalists and farmers challenged the approval decision in 2016. After four years of litigation, in summer 2020, the U.S. Court of Appeals for the Ninth Circuit issued a detailed fifty-sixpage opinion carefully analyzing the voluminous record evidence and holding that EPA violated FIFRA in no less than six ways, grounds upon which the Court then completely vacated the registration as unlawfully issued. The Court concluded that EPA violated FIFRA by substantially underestimating several important risks and costs, including the amount of dicamba sprayed, the number of injury reports, and the amount and costs of crop damage. The Court also held that EPA completely failed to consider and account for several other costs, such as economic losses ensuing from anti-competitive, monopolistic effects of the registrations, as well as the social costs of strife and dissension in farming communities triggered by rampant off-target dicamba damage to neighbors’crops. Finally, the Court held that EPA violated FIFRA by predicating its core conclusion that its approval would have no adverse economic and environmental effects on mitigation measures—in the form of weather-related use restrictions—that substantial record evidence demonstrated were so extreme that farmers could not both follow the mitigation measures and have any hope of controlling weeds. EPA failed to consider and analyze whether following those directions was possible in real-world farming conditions. All of these were precedential FIFRA holdings.
While the dicamba drift damage story is dramatic, EPA’s mistakes and unlawful regulatory approach were not singular; instead, they are emblematic of systemic, longstanding poor pesticide oversight. Make no mistake, the needed remedy is nothing short of a complete overhaul of EPA’s mission with regard to pesticides and, with it, modern, twenty-first-century legislation to address twentyfirst-century agricultural challenges. However, in the absence of the political will for such changes, the NFFC precedent, and a few other important current and past cases, provide the chance to substantially improve pesticide regulation going forward and breathe some longoverdue and badly needed new life into its old statutory bones.
Part II of this Article provides a brief history of pesticides and modern industrial agriculture, its current iteration of crop systems engineered with resistance to multiple pesticides, and the adverse impacts of this pesticide-promoting system on health and the environment. Part III sets forth how pesticides are regulated under FIFRA, its implementing regulations, and the EPA modus operandi. It summarizes the many problems in the regulatory structure and implementation, including its limited scope, regulatory loopholes, lack of transparency, industry capture/bias, lack of enforcement, and limiting judicial interpretation. Part IV presents the case study of NFFC v. EPA and discusses the import of its holdings. Part V places the NFFC case in the broader context of developing pesticide litigation and law, and the legal and cultural battle for the future of our food. This Article concludes on a cautiously optimistic note, as NFFC and other similar cases may be the leading edge needed to create long-overdue improvements to pesticide regulation for the betterment of health and environmental protection.</description><subject>Agricultural economics</subject><subject>Agricultural engineering</subject><subject>Agriculture</subject><subject>Agrochemicals</subject><subject>Appeals</subject><subject>Bones</subject><subject>Bushes</subject><subject>Clouds</subject><subject>Company business management</subject><subject>Constraining</subject><subject>Costs</subject><subject>Crop damage</subject><subject>Crops</subject><subject>Damage</subject><subject>Drift</subject><subject>Economic impact</subject><subject>Economics</subject><subject>Endangered species</subject><subject>Environmental effects</subject><subject>Environmental law</subject><subject>Environmental management</subject><subject>Environmental protection</subject><subject>Environmental regulations</subject><subject>Environmentalists</subject><subject>Family farms</subject><subject>Farmers</subject><subject>Farming</subject><subject>Federal court decisions</subject><subject>Fertilizers</subject><subject>Fungicides</subject><subject>Genetic engineering</subject><subject>Government regulation</subject><subject>Herbicides</subject><subject>Insecticides</subject><subject>Laws, regulations and rules</subject><subject>Legislation</subject><subject>Litigation</subject><subject>Livestock</subject><subject>Management</subject><subject>Methods</subject><subject>Mitigation</subject><subject>Occupational health</subject><subject>Pesticide toxicity</subject><subject>Pesticides</subject><subject>Pesticides policy</subject><subject>Pesticides regulation</subject><subject>Public health</subject><subject>Regulation</subject><subject>Rodenticides</subject><subject>Runoff</subject><subject>Spraying</subject><subject>Toxicity</subject><subject>Trees</subject><subject>Weeds</subject><subject>Wildlife</subject><issn>0046-2276</issn><fulltext>true</fulltext><rsrctype>article</rsrctype><creationdate>2021</creationdate><recordtype>article</recordtype><recordid>eNqV0c9rgzAUB3APG6z78ScMAjvtYDExifE0nI02IDqs205DbEzEYmunFrb_fkI7RqGMjRxeCJ_3fTxyZkwsC1MTIYdeGJd9v7IsizjUmRhvryKKQMrD58jLknQBfC_z5yCbczBLRZA9gDgIfPAyBfzJA148A48p97K5iEMQ81cQiYADEWcJeOKLTPhixr_TRBJfG-e6aHp1c6hXxnPAx3wzSkLhe5FZIZcwsySq1KVSkikN8XinkDAGscR4qUtc6kK5UpeQLqXtusjVDNuUOhaWymVEI_vKuNvnbrv2faf6IV-1u24zjswRcR0CbYjYj6qKRuX1RrdDV8h13cvcowxCG2GbjMo8oSq1UV3RtBul6_H5yE9P-PGUal3Lkw33Rw2jGdTHUBW7vs_FIv2Hjf9sWRj9tuTByrZpVKXy8XP85Njf7v2qH9ou33b1uug-c8woYsSG9hdGArJE</recordid><startdate>20210801</startdate><enddate>20210801</enddate><creator>Kimbrell, George</creator><creator>Wu, Sylvia</creator><creator>Leonard, Audrey</creator><general>Lewis & Clark Law School</general><general>Lewis & Clark Northwestern School of Law</general><general>Lewis and Clark College, Northwestern School of Law</general><scope>8GL</scope><scope>ISN</scope><scope>ISR</scope><scope>ILT</scope><scope>7ST</scope><scope>C1K</scope><scope>SOI</scope></search><sort><creationdate>20210801</creationdate><title>WILL REGULATORS CATCH THE DRIFT? NFFC V. EPA AND BREATHING NEW LIFE INTO PESTICIDE REGULATION</title><author>Kimbrell, George ; Wu, Sylvia ; Leonard, Audrey</author></sort><facets><frbrtype>5</frbrtype><frbrgroupid>cdi_FETCH-LOGICAL-g2958-d5edfdeec8ef14edf6158814c44bfd4dfae9cfd16bc39929f84366704ce985f23</frbrgroupid><rsrctype>articles</rsrctype><prefilter>articles</prefilter><language>eng</language><creationdate>2021</creationdate><topic>Agricultural economics</topic><topic>Agricultural engineering</topic><topic>Agriculture</topic><topic>Agrochemicals</topic><topic>Appeals</topic><topic>Bones</topic><topic>Bushes</topic><topic>Clouds</topic><topic>Company business management</topic><topic>Constraining</topic><topic>Costs</topic><topic>Crop damage</topic><topic>Crops</topic><topic>Damage</topic><topic>Drift</topic><topic>Economic impact</topic><topic>Economics</topic><topic>Endangered species</topic><topic>Environmental effects</topic><topic>Environmental law</topic><topic>Environmental management</topic><topic>Environmental protection</topic><topic>Environmental regulations</topic><topic>Environmentalists</topic><topic>Family farms</topic><topic>Farmers</topic><topic>Farming</topic><topic>Federal court decisions</topic><topic>Fertilizers</topic><topic>Fungicides</topic><topic>Genetic engineering</topic><topic>Government regulation</topic><topic>Herbicides</topic><topic>Insecticides</topic><topic>Laws, regulations and rules</topic><topic>Legislation</topic><topic>Litigation</topic><topic>Livestock</topic><topic>Management</topic><topic>Methods</topic><topic>Mitigation</topic><topic>Occupational health</topic><topic>Pesticide toxicity</topic><topic>Pesticides</topic><topic>Pesticides policy</topic><topic>Pesticides regulation</topic><topic>Public health</topic><topic>Regulation</topic><topic>Rodenticides</topic><topic>Runoff</topic><topic>Spraying</topic><topic>Toxicity</topic><topic>Trees</topic><topic>Weeds</topic><topic>Wildlife</topic><toplevel>online_resources</toplevel><creatorcontrib>Kimbrell, George</creatorcontrib><creatorcontrib>Wu, Sylvia</creatorcontrib><creatorcontrib>Leonard, Audrey</creatorcontrib><collection>Gale In Context: High School</collection><collection>Gale In Context: Canada</collection><collection>Gale In Context: Science</collection><collection>LegalTrac</collection><collection>Environment Abstracts</collection><collection>Environmental Sciences and Pollution Management</collection><collection>Environment Abstracts</collection><jtitle>Environmental law (Portland, Ore.)</jtitle></facets><delivery><delcategory>Remote Search Resource</delcategory><fulltext>fulltext</fulltext></delivery><addata><au>Kimbrell, George</au><au>Wu, Sylvia</au><au>Leonard, Audrey</au><format>journal</format><genre>article</genre><ristype>JOUR</ristype><atitle>WILL REGULATORS CATCH THE DRIFT? NFFC V. EPA AND BREATHING NEW LIFE INTO PESTICIDE REGULATION</atitle><jtitle>Environmental law (Portland, Ore.)</jtitle><addtitle>Environmental Law</addtitle><date>2021-08-01</date><risdate>2021</risdate><volume>51</volume><issue>3</issue><spage>667</spage><epage>743</epage><pages>667-743</pages><issn>0046-2276</issn><abstract>In the past half-century, U.S. agriculture has become dramatically more industrialized, consolidated, and bifurcated between livestock and crop agriculture, resulting in significant negative environmental, health, and socioeconomic effects. One pillar propping up this unsustainable industrial model is heavy reliance on synthetic pesticides and fertilizers, chemical inputs necessary for large monoculture production. In the most recent twenty-first-century version of this ever-entrenching paradigm, pesticide companies sell a seed/pesticide cropping system, comprised of crops genetically engineered (GE) to resist multiple pesticides, allowing “over the top” spraying at new times of the year and in new ways. These crop systems have significantly increased the pesticide load on our foods and into our environment, creating huge externalized environmental and health costs.
Pesticides are toxic substances intended to harm or kill. Yet, stakeholders best characterize current federal pesticide regulation under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) not by its rigor but by its weaknesses and loopholes. The U.S. Environmental Protection Agency (EPA), charged with administering FIFRA, increasingly approves new uses and variations of pesticides without fully taking into account the consequences these chemical cocktails have on public health, farmers, and our most imperiled species. This includes conditionally approving pesticides despite lacking vital data showing their safety and limiting the scope of agency review when it is applied. When EPA chooses to bend to the whim of powerful agrochemical corporations instead of truly evaluating the potential risks, environmentalists, farmers, and farmworker groups often turn to the courts to challenge EPA’s pesticide approvals.
A recent case, National Family Farm Coalition v. EPA (NFFC), 960 F. 3d 1120 (9th Cir. 2020), presented these issues in stark relief. Dicamba (3,6-dichloro-2-methoxybenzoic acid) is a broad-spectrum herbicide. Dicamba is an effective weed killer, but its toxicity is not limited to weeds. It can also kill many desirable broadleaf plants, bushes, and trees. And it has a well-known drawback: dicamba is volatile, moving easily off a field on which a farmer has sprayed it. As a result of its toxicity and its tendency to drift, dicamba has historically been limited to clearing fields of weeds, either before crops were planted or before newly planted crops emerged. This changed in 2016: despite scientists and farmers raising significant concerns, EPA conditionally registered new, over-the-top dicamba pesticide spraying as the “next generation” of pesticide-resistant cropping systems. That first-ever such approval led to 20 million more pounds of dicamba sprayed annually, a twenty-three-fold increase, across approximately 50 million acres at new times of the year and in novel ways.
EPA’s approval created a debacle that agronomists say is unprecedented in the history of U.S. agriculture: the spraying of massive amounts of dicamba resulted in millions of acres of crops, trees, and wild plants damaged by dicamba spray droplets drifting off-field during application; dicamba vapor clouds damaged vast fields from fencerow to fencerow; dicamba-laced water ran off sprayed fields; and even rainfall was contaminated in areas of intensive use. Millions of acres of off-field dicamba drift and runoff resulted in widespread destruction of crops, economic losses, social upheaval to rural communities, and harm to endangered species and other wildlife.
Environmentalists and farmers challenged the approval decision in 2016. After four years of litigation, in summer 2020, the U.S. Court of Appeals for the Ninth Circuit issued a detailed fifty-sixpage opinion carefully analyzing the voluminous record evidence and holding that EPA violated FIFRA in no less than six ways, grounds upon which the Court then completely vacated the registration as unlawfully issued. The Court concluded that EPA violated FIFRA by substantially underestimating several important risks and costs, including the amount of dicamba sprayed, the number of injury reports, and the amount and costs of crop damage. The Court also held that EPA completely failed to consider and account for several other costs, such as economic losses ensuing from anti-competitive, monopolistic effects of the registrations, as well as the social costs of strife and dissension in farming communities triggered by rampant off-target dicamba damage to neighbors’crops. Finally, the Court held that EPA violated FIFRA by predicating its core conclusion that its approval would have no adverse economic and environmental effects on mitigation measures—in the form of weather-related use restrictions—that substantial record evidence demonstrated were so extreme that farmers could not both follow the mitigation measures and have any hope of controlling weeds. EPA failed to consider and analyze whether following those directions was possible in real-world farming conditions. All of these were precedential FIFRA holdings.
While the dicamba drift damage story is dramatic, EPA’s mistakes and unlawful regulatory approach were not singular; instead, they are emblematic of systemic, longstanding poor pesticide oversight. Make no mistake, the needed remedy is nothing short of a complete overhaul of EPA’s mission with regard to pesticides and, with it, modern, twenty-first-century legislation to address twentyfirst-century agricultural challenges. However, in the absence of the political will for such changes, the NFFC precedent, and a few other important current and past cases, provide the chance to substantially improve pesticide regulation going forward and breathe some longoverdue and badly needed new life into its old statutory bones.
Part II of this Article provides a brief history of pesticides and modern industrial agriculture, its current iteration of crop systems engineered with resistance to multiple pesticides, and the adverse impacts of this pesticide-promoting system on health and the environment. Part III sets forth how pesticides are regulated under FIFRA, its implementing regulations, and the EPA modus operandi. It summarizes the many problems in the regulatory structure and implementation, including its limited scope, regulatory loopholes, lack of transparency, industry capture/bias, lack of enforcement, and limiting judicial interpretation. Part IV presents the case study of NFFC v. EPA and discusses the import of its holdings. Part V places the NFFC case in the broader context of developing pesticide litigation and law, and the legal and cultural battle for the future of our food. This Article concludes on a cautiously optimistic note, as NFFC and other similar cases may be the leading edge needed to create long-overdue improvements to pesticide regulation for the betterment of health and environmental protection.</abstract><cop>Portland</cop><pub>Lewis & Clark Law School</pub><tpages>77</tpages></addata></record> |
| fulltext | fulltext |
| identifier | ISSN: 0046-2276 |
| ispartof | Environmental law (Portland, Ore.), 2021-08, Vol.51 (3), p.667-743 |
| issn | 0046-2276 |
| language | eng |
| recordid | cdi_proquest_journals_2597513128 |
| source | HeinOnline Law Journal Library; JSTOR |
| subjects | Agricultural economics Agricultural engineering Agriculture Agrochemicals Appeals Bones Bushes Clouds Company business management Constraining Costs Crop damage Crops Damage Drift Economic impact Economics Endangered species Environmental effects Environmental law Environmental management Environmental protection Environmental regulations Environmentalists Family farms Farmers Farming Federal court decisions Fertilizers Fungicides Genetic engineering Government regulation Herbicides Insecticides Laws, regulations and rules Legislation Litigation Livestock Management Methods Mitigation Occupational health Pesticide toxicity Pesticides Pesticides policy Pesticides regulation Public health Regulation Rodenticides Runoff Spraying Toxicity Trees Weeds Wildlife |
| title | WILL REGULATORS CATCH THE DRIFT? NFFC V. EPA AND BREATHING NEW LIFE INTO PESTICIDE REGULATION |
| url | https://sfx.bib-bvb.de/sfx_tum?ctx_ver=Z39.88-2004&ctx_enc=info:ofi/enc:UTF-8&ctx_tim=2025-01-29T09%3A04%3A31IST&url_ver=Z39.88-2004&url_ctx_fmt=infofi/fmt:kev:mtx:ctx&rfr_id=info:sid/primo.exlibrisgroup.com:primo3-Article-gale_proqu&rft_val_fmt=info:ofi/fmt:kev:mtx:journal&rft.genre=article&rft.atitle=WILL%20REGULATORS%20CATCH%20THE%20DRIFT?%20NFFC%20V.%20EPA%20AND%20BREATHING%20NEW%20LIFE%20INTO%20PESTICIDE%20REGULATION&rft.jtitle=Environmental%20law%20(Portland,%20Ore.)&rft.au=Kimbrell,%20George&rft.date=2021-08-01&rft.volume=51&rft.issue=3&rft.spage=667&rft.epage=743&rft.pages=667-743&rft.issn=0046-2276&rft_id=info:doi/&rft_dat=%3Cgale_proqu%3EA681132435%3C/gale_proqu%3E%3Curl%3E%3C/url%3E&disable_directlink=true&sfx.directlink=off&sfx.report_link=0&rft_id=info:oai/&rft_pqid=2597513128&rft_id=info:pmid/&rft_galeid=A681132435&rft_jstor_id=48628531&rfr_iscdi=true |