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Enlist Duo Survives Appeal    11/19 11:40

   Ninth Circuit Rejects Request to Rehear Enlist Duo Lawsuit

   The Ninth Circuit Court of Appeals has declined to reevaluate part of its 
original ruling upholding Enlist Duo's registration.

Emily Unglesbee
DTN Staff Reporter

   ROCKVILLE, Md. (DTN) -- Enlist Duo's registration has survived another legal 
challenge, after the U.S. Court of Appeals for the Ninth Circuit declined to 
reevaluate part of its earlier ruling upholding the herbicide's registration.

   In that first ruling in July 2020, a panel of three Ninth Circuit judges 
ruled in a 2-1 judgement that the herbicide, a 2,4-D-choline-glyphosate premix 
designed to be sprayed over top 2,4-D-tolerant Enlist crops, did not violate 
federal law, as a group of environmental and farmer groups had alleged in a 
lawsuit. The judges did order EPA to reevaluate Enlist Duo's impacts on monarch 
butterflies but left the herbicide's registration intact and on the market.

   That ruling was a major victory for the agrichemical industry, which was 
still reeling from a Ninth Circuit Court decision earlier in the summer, which 
vacated three dicamba registrations, based on similar legal arguments by the 
same group of plaintiffs. (See more details here: 
https://www.dtnpf.com/agriculture/web/ag/crops/article/2020/07/22/ninth-circuit-
court-ruling-upholds.)  

   Specifically, the plaintiffs in the Enlist Duo case -- a group of 
environmental organizations led by the Natural Resources Defense Council and 
the Center for Food Safety -- then filed a petition in late September asking 
for a larger panel of Ninth Circuit judges to rehear part of their lawsuit, 
known as a "petition for rehearing en banc."

   The plaintiffs argued that the original July ruling violated the Endangered 
Species Act, ignored legal precedent and created "a dangerous loophole" for 
future pesticide registrations.

   On Nov. 18, the Ninth Circuit rejected those arguments. Only one judge -- 
Judge Paul Watford, who also dissented in the original 2-1 decision -- 
recommended that the court reexamine the case. As a result, the petition was 
rejected and the plaintiffs now have only one final recourse, an appeal to the 
U.S. Supreme Court.

   The decision comes as Corteva Agriscience, the current registrant of Enlist 
Duo, is gearing up to oversee the planting of a record number of its 
2,4-D-tolerant Enlist crops in 2021.

   "All Corteva seed brands plus 100 licensees are adding Enlist traits into 
their best germplasm, and for 2021, we expect to see more varieties with the E3 
trait," Steve Snyder, Enlist technology specialist for Corteva, said in a 
recent company media event. He added later that, "Last year we were around 20% 
[soybean market share]. We expect that to grow; we are seeing significant 
growth for 2021."

   In an emailed statement to DTN, the company applauded the Ninth Circuit's 
decision. "Corteva Agriscience is pleased with this decision that affirms the 
U.S. Environmental Protection Agency's 2017 registration of Enlist Duo 
herbicide," the statement read. "We are confident in the sustainability and 
effectiveness of Enlist Duo herbicide."

   Emily Unglesbee can be reached at Emily.unglesbee@dtn.com

   Follow her on Twitter @Emily_Unglesbee




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