GM crops sprayed with Dow’s weedkiller may be on their way to America’s dinner tables

EXCERPT: The court's decision allows Dow to sell Enlist Duo while the EPA takes a second look at the weedkiller. But the bigger hurdle for Dow remains China, a major buyer of U.S. crops. American grain elevators won't accept Dow's genetically modified crops until China approves them.
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Court clears way for revival of worrisome weedkiller

by Patricia Callahan
Chicago Tribune, 28 Jan 2016
http://www.chicagotribune.com/news/watchdog/ct-dow-enlist-duo-court-ruling-20160127-story.html

A federal appellate court decision this week handed a victory to Dow Chemical Co.'s efforts to revive a World War II-era weedkiller and brought the next generation of genetically modified crops closer to America's dinner tables.

In a case that has seen one surprising twist after another, the 9th U.S. Circuit Court of Appeals rejected the U.S. Environmental Protection Agency's request to vacate its own scientists' 2014 approval of the Dow weedkiller known as Enlist Duo. The three-sentence order did not elaborate on the judges' reasoning.

Dow genetically engineered corn and soybeans so they are immune to Enlist Duo — a mix of glyphosate, the nation's most popular weedkiller, and 2,4-D, a 1940s herbicide linked to cancer and other health problems. The new chemical will give farmers a one-two punch to wipe out field-choking weeds that have become impervious to glyphosate, which also has been linked to cancer.

In December, the Tribune revealed that the EPA approved Enlist Duo after the agency tossed aside evidence of kidney problems that Dow's own researchers said were caused by 2,4-D. Regulators ultimately decided that Dow — a company with a $1 billion product at stake — had been overly cautious in flagging those abnormalities. That cleared the way for the EPA to allow 41 times more 2,4-D into the American diet than was previously considered safe.

Precisely when farmers will be able to plant Dow's new genetically modified crops remains uncertain. The court's decision allows Dow to sell Enlist Duo while the EPA takes a second look at the weedkiller. But the bigger hurdle for Dow remains China, a major buyer of U.S. crops. American grain elevators won't accept Dow's genetically modified crops until China approves them.

The case before the appellate court began with a complaint filed by a coalition of family farm and environmental groups, which argued that the EPA failed to adequately evaluate the risk to human health and the harm to endangered species.

After repeatedly disputing those claims, the EPA shocked all sides last year when the agency asked the court to vacate its approval of the herbicide — an unprecedented move — after EPA attorneys said an agency scientist discovered a Dow patent filing that stated that the glyphosate and 2,4-D in Enlist Duo are more effective at killing weeds when they are combined than the two are apart.

The agency, which criticized Dow for failing to disclose that synergy, said EPA scientists wanted to figure out whether bigger no-spray zones were needed to protect endangered plants on the edges of farm fields.

Environmental and public health groups at the time celebrated the agency's sudden reversal while decrying what they saw as a bungled approval process.

But Dow fired back in a court filing that the EPA was illegally avoiding the regulatory process that the agency must follow to force a pesticide off the market. That lengthy process involves hearings, a notice to the secretary of agriculture and a mandatory analysis of the impact on the farm economy and retail food prices.

"The EPA is trying to short-circuit this regulatory scheme and abdicate the responsibilities Congress assigned to the agency," Dow said in a legal filing.

As for the heightened potency of Enlist Duo, Dow in court filings said it abandoned that synergy patent "when a thorough review of all the data generated found the synergies were not present in the final formulation selected for Enlist Duo".

The company last year was so confident that it could quickly resolve the agency's concerns about endangered plants that the title of a November news release read, "Dow Expects Enlist Duo to be Available for the 2016 U.S. Crop Season."

The groups that brought the suit noted in a legal filing that Dow abandoned the patent a year after EPA approved Enlist Duo and only after the EPA had requested Dow's synergy data.

"Dow obviously knew, by the time EPA registered Enlist Duo in October 2014, the formulation EPA had selected, but Dow did nothing to withdraw its patent claim until loss of the Enlist Duo registration was at stake," the coalition argued.

In a written statement, the EPA said it is "reconsidering Enlist Duo's registration".

"The agency is awaiting new data from the manufacturer and will review that information to determine next steps," the agency said.

The EPA has consistently said it believes that 2,4-D is safe for humans. Agency officials have told the Tribune they had no intention of yanking Enlist Duo from the market permanently.

Had the court vacated the agency's approval, Dow would not have been allowed to sell Enlist Duo until the EPA went through the approval process all over again.

In one December court filing, Dow offered to stop selling Enlist Duo while the EPA worked out an agreement on what additional steps, if any, were needed.

On Wednesday, Dow spokesman Garry Hamlin said the company plans to work with the EPA "positively and constructively to address the agency's questions". Dow, however, is no longer offering to suspend sales of Enlist Duo, he added.

"It was never agreed to," Hamlin said. "It was something we offered. That time has passed."

Sylvia Fallon, a senior scientist at the National Resources Defense Council, one of the groups that brought the suit, wrote on her blog that she was disappointed by the court decision but noted that it "still gives EPA the ability to more fully evaluate the effects of Enlist Duo or even to cancel it entirely".

"Now is the time for the agency to get it right," she added.