U.S. Environmental Protection Agency requests partial rehearing in glyphosate litigation

On Monday, the U.S. EPA submitted a petition to the Ninth Circuit Court of Appeals requesting a partial rehearing of the three-judge panel’s June 17 ruling on the glyphosate interim decision. In that ruling, the panel vacated the interim decision’s human health risk assessment and sent back the ecological risk assessment to EPA to complete an Endangered Species Act analysis by October 1. It is regarding this remand of the ecological portion of the interim decision for which EPA is seeking a partial rehearing.

In its earlier ruling, the court panel directed EPA to issue a new ecological risk assessment, presumably including a finalized ESA analysis, by October 1. However, in its request for a partial rehearing, EPA points out that to finalize an ESA consultation is a multi-year process, for which the panel granted EPA only 106 days. Additionally, finalizing an ESA consultation requires EPA to coordinate with both the Fish and Wildlife Service and the National Marine Fisheries Service, neither of which are parties to the lawsuit or are subject to the court’s order. As a result, EPA cannot comply with the court’s order, as it relies on cooperation from parties outside of EPA’s control.

EPA requested that the court grant the rehearing to, preferably, consider lifting the October 1 deadline. If the court is unwilling to do so, the agency requested the court vacate the interim decision in its entirety since it cannot comply with the order as it stands. EPA also suggested it may withdraw the ecological portion of the interim decision if the court does not lift the deadline or vacate the interim decision.

The American Soybean Association is party to the litigation and is continuing to carefully monitor the case for developments. Additionally, ASA is regularly seeking additional advocacy opportunities to protect grower access to glyphosate and other vital crop protection tools.