Three federal appeals court judges are wrestling with the question of whether to vacate the registration of glyphosate, the active ingredient in Roundup.

Two sets of environmental groups have sued the Environmental Protection Agency over EPA’s 2020 interim registration, claiming the agency failed to properly assess the risks to both human and environmental health. One set, led by Rural Coalition, want the registrations scrapped so EPA can re-examine the risks to human health and endangered species. The other set of groups, led by the Natural Resources Defense Council, does not oppose sending EPA’s interim decision back to the agency — without vacating it — so it can re-do its ecological risk assessment.

EPA has asked the court to remand the case but leave the registration intact.

The panel, which included one judge from the 6th U.S. Circuit Court of Appeals and two from the 9th Circuit, heard arguments in the case Monday without clearly signaling how they might rule. J. Clifford Wallace of the 9th Circuit seemed inclined to send the matter back to EPA.

“Why don’t we leave it to EPA, the experts?” Wallace asked attorney Amy Van Saun of the Center for Food Safety, representing that group and Rural Coalition. “Why should we muck with it … up here in the appellate court?”

Van Saun said vacating an illegal decision is the “presumptive remedy” under both the Administrative Procedure Act and the Endangered Species Act. The coalition noted that before issuing its interim decision, EPA had not completed interagency consultation under the ESA.

NRDC attorney Lucas Rhoads said if the court sends the case back to EPA without vacating the interim decision, it should set a clear deadline for the agency to finish its work on ecological risks. “The court should not allow an indefinite amount of time for remand,” Rhoads said.

Van Saun said EPA’s assessment of human health risks ignored key animal studies on glyphosate’s carcinogenicity and failed to take into account the views of agency scientists. Her arguments resonated with 9th Circuit Judge Michelle Friedland, who took issue with EPA’s application of its own cancer guidelines.

“The problem that I'm having is that EPA said that it couldn't reach a conclusion about [non-Hodgkin’s lymphoma] and then chose the … descriptor ‘not likely’ [to cause cancer], and that seems to not match the cancer guidelines,” she told Justice Department attorney Phillip Dupre.

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He responded that “the cancer guidelines, if you look in the record, are sort of narrative descriptions and not precise terminology.” In addition, he said there was “substantial evidence to support the agency's conclusion that there was not a link between glyphosate and non-Hodgkin’s lymphoma.”

Richard Bress, representing Monsanto, an intervenor in the case, said EPA had done an “extraordinary job” evaluating human health risks and took issue with the Rural Coalition arguments.

“They argued that the finding that the agency made … that its conclusion from just the epidemiological studies of NHL is inconclusive, is somehow flatly inconsistent with its conclusion that glyphosate is unlikely to cause cancer,” Bress said.

He called the characterization “false” and said “EPA addresses that very issue and says, yes, the epidemiological studies are inconclusive on NHL. But there are ‘remarkably consistent’ studies from animal carcinogenicity and from genotoxicity, and the agency explains that it took a weight of the evidence approach … to come to its conclusion that as a whole, it's unlikely to be a carcinogen to humans.”

Van Saun, however, said EPA had “barely paid lip service” to criticisms of its analysis by the agency's scientific advisory panel.

The judges did not indicate when they would issue a ruling.

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