Enlist Duo survives 9th Circuit; sorghum growers seek Sulfoxaflor

WASHINGTON, Jan. 27, 2016 - The Ninth Circuit won’t suspend the registration of Dow AgroSciences’ Enlist Duo herbicide. EPA will have to make the decision after additional review.

The federal appeals court in San Francisco denied the EPA’s request for “voluntary vacatur” of the herbicide’s registration, “without prejudice to the rights of either party to litigate that question before the agency.”

But in a three-paragraph ruling, the court on Monday granted EPA’s motion for remand, meaning the agency will have another crack at reviewing data on the synergistic effects of the two ingredients in Enlist Duo – glyphosate and 2,4-D.

In December, when farm groups were calling for EPA to withdraw its motion before the court, EPA told Agri-Pulse it wanted to take another look at Enlist because it had received new information from Dow AgroSciences, the registrant of Enlist Duo, suggesting that acting together, 2,4-D and glyphosate could be more toxic to non-target plants.

“Dow had not provided this information to EPA prior to EPA issuing the Enlist Duo registration. EPA has not yet completed its review of the new information.” The information, EPA said, “could lead (it) to a different decision on the restrictions for using Enlist Duo. Specifically, this could result in changes to the width around application areas of no-use buffer zones that EPA imposed to protect unintended plants, including those listed as endangered.”

Environmental and food safety groups had cheered the agency’s decision in November to seek temporary cancellation of the registration while it examined the effects on federally listed species of the herbicide, a combination of 2,4-D and glyphosate. When EPA asked the court to act, Dow said it was voluntarily suspending sales and said it expected to have the remaining questions resolved in time for the 2016 planting season.

Dow, however, also argued that the court should not decide the registration question. “(A)n agency’s desire for an opportunity to review an earlier decision in light of new information provides no basis for either the agency or a court summarily to annul that decision,” the company argued to the court in a Dec. 7 brief.

Glyphosate is under the microscope in another venue: The state of California is considering adding the herbicide to its list of chemicals “known to cause cancer,” because of the finding by the International Agency for Research on Cancer that glyphosate is probably carcinogenic to humans. In June, IARC classified 2,4-D as “possibly carcinogenic to humans.”

Sulfoxaflor and sugarcane aphids. In an unrelated development, unusually high populations of sugarcane aphids have prompted Texas sorghum growers to ask EPA to let them use the Dow insecticide sulfoxaflor, whose registration was pulled in November.

Growers are requesting to “make no more than two applications at a rate of 0.75 -1.5 ounces of product per acre or a seasonal maximum application rate of 3 ounces of product per acre per year, resulting in the use of 70,314 gallons of product,” EPA said in a Federal Register notice.  

A maximum of 3 million acres of sorghum fields (both grain and forage) could be treated. The Texas Department of Agriculture said the aphids can “cause direct plant death” from feeding “as well as indirect damage and harvesting problems from the aphid honeydew residue in Texas sorghum fields.”

EPA said that there are currently no registered insecticides “or any economically or environmentally feasible alternative control practices available to adequately control this non-routine pest infestation. The state has asserted that without the use of sulfoxaflor, uncontrolled aphid infestations are likely to result in significant economic losses.” The agency will accept comments for 15 days.

The Section 18 application, named for the part of the Federal Insecticide, Fungicide and Rodenticide Act that governs exemptions, was officially made by the TDA.

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