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Enlist Duo herbicide under fire by Ninth Circuit Court of Appeals

Lawsuit challenges Enlist Duo’s impact on environment.

In the wake of the U.S. Environmental Protection Agency’s June 8 decision to cancel registration of three dicamba-based herbicides: Xtend, FeXapan, and Engenia, farmers are left wondering what the future is for another herbicide-tolerant crop systems: the Enlist Weed Control System.

Developed by Corteva Agriscience, the Enlist system features resistance to 2,4-D choline, a herbicide promising reduced off-target movement compared with 2,4-D amine and ester. There are two herbicides labeled for use with the Enlist system: Enlist, the special formulation of 2,4-D choline, and Enlist Duo, which adds glyphosate to 2,4-D choline. 

But Enlist Duo is not without its share of challenges. 

“The same plaintiffs [the Center for Food Safety, Earthjustice, National Family Farm Coalition, and the Natural Resources Defense Council] are suing to cancel the registration of Enlist Duo,” says Roger McEowen, Kansas Farm Bureau professor of agricultural law and taxation, Washburn University School of Law in Topeka, Kansas. The groups allege that EPA violated the Endangered Species Act (ESA) by failing to consult with the U.S. Fish & Wildlife Service (FWS) regarding the impact of Enlist Duo on two endangered species in those states, the whooping crane and the Indiana bat. 

“I don’t think it will be successful for several reasons,” McEowen says. “There hasn’t been the same uproar over it as there has been with the dicamba products. Also, the label directions are much easier to comply with concerning Enlist. Those two things were a big deal with the court in its opinion last week.”

In the Xtend case, the court’s opinion was not focused on the technology, but on the process EPA used to approve registrations, he explains. The complaint focuses more on an alleged violation of the Endangered Species Act rather than the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). 

“Also, it won’t be the same three-judge panel that heard the dicamba case,” he adds. “It’s the same circuit – but different judges.”

In a statement released to the media, Corteva defends the Enlist Duo system: 

“The Enlist Weed Control System is an important tool for farmers, and Enlist Duo provides critical weed control with reduced potential for drift and near-zero volatility. We strongly disagree with the petitioners in the case brought against the U.S. EPA in the Court of Appeals for the Ninth Circuit regarding the registration of Enlist Duo,” the statement read.

As for Xtendimax, FeXapan, and Engenia, McEowen says the Ninth Circuit’s decision, and EPA’s subsequent action, doesn’t mean the end of the technology for farmers after 2020.

“EPA must go back and do a more thorough job of weighing the costs and benefits of the herbicide. Then it can be registered again,” he explains. “However, we may actually be at the peak usage of Xtend presently.”

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