The U.S. Environmental Protection Agency asked the Ninth Circuit to let it reexamine ecological risks and other factors of glyphosate, the primary ingredient in Monsanto’s weedkiller Roundup, while maintaining it was right to conclude the substance likely doesn’t cause cancer.

The agency asked the Ninth Circuit to partially remand an interim decision that examined the risks associated with glyphosate, arguing that it should be given a chance to take a new look at the substance’s ecological risks and weigh those “risks against the benefits.” But the agency also defended its determination that glyphosate isn’t a concern for human health. They oppose public health groups like the Center for Food Safety that see glyphosate as problematic.

The agency said that recent reviews of glyphosate’s impact on species as well as court decisions and a change in administration demonstrate that circumstances have changed and the EPA should be given a chance to review some of its work. The agency said that a final review of the registration for glyphosate, which evaluates the substance’s uses, benefits versus costs and any needed restrictions, in accordance with the Federal Insecticide, Fungicide and Rodenticide Act, is “still forthcoming.”

The interim decision at issue examined the risks to human health as well as ecological risks of glyphosate. The EPA had determined that glyphosate, a commonly used herbicide in the U.S., should continue to be used, albeit with some labeling and usage tweaks.

The agency argues there are several reasons a partial remand is warranted. A draft biological evaluation was issued in November that said of nearly 1,800 protected species likely to be affected by the substance, “such use was likely to adversely affect 1,676 of those species.” There are also a pair of Ninth Circuit decisions from last year that the agency says motivate it to reexamine glyphosate’s impact on the habitat of monarch butterflies and the risks if the herbicide drifts into areas where it was not directly applied.

Remand will allow the issues to be part of the EPA’s final registration review for glyphosate. The agency argues that vacating any part of its initial decision isn’t necessary since it imposed restrictions on the substance’s use. And throwing out the interim decision, as the activists have asked for, wouldn’t warrant overturning the registration of hundreds of glyphosate products, according to the agency.

Bayer said in a statement that the filings show that the EPA under both parties has refuted the link between cancer and glyphosate. The company added that the EPA’s arguments support “the company’s federal preemption arguments in the Roundup litigation that state-based failure-to-warn claims cannot stand if they are different from or conflict with federal law, represented by the EPA-approved label for Roundup products containing glyphosate.”

Law360: https://www.law360.com/articles/1386210/epa-asks-9th-circ-to-remand-part-of-weedkiller-review

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