Author: Brigit Rollins

Environmental plaintiffs are seeking summary judgment in a lawsuit they filed in 2023 to challenge the Environmental Protection Agency’s (“EPA”) 2022 decision to register the pesticides Enlist One and Enlist Duo for use through January 2029. Specifically, the plaintiffs have asked the court to revoke the labels for both Enlist products, a move that would make both products unavailable for use.

Both Enlist One and Enlist Duo are herbicide products manufactured and sold by Corteva Agriscience LLC. Both products contain as an active ingredient the choline salt of 2,4-dichlogophenoxyacetic acid, otherwise known as 2,4-D. Enlist Duo also includes glyphosate as a second active ingredient. Enlist One and Enlist Duo have both been approved for use on 2,4-D resistant corn, soybean, and cotton crops in 34 states. 

A pesticide may not be sold or distributed in the United States until EPA registers the pesticide for use under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). To register a pesticide, FIFRA requires EPA to determine that using the pesticide for its intended purpose will not cause “unreasonable adverse effects on the environment” which is defined as “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of the pesticide.” In other words, FIFRA requires EPA to register a pesticide for use only if the agency has determined that the costs of using the pesticide in its intended manner do not outweigh the benefits.

When EPA registered Enlist One and Enlist Duo for use in 2022, the agency concluded that one of the main benefits of using Enlist products was the products’ effectiveness against herbicide-resistant broadleaf weeds in cotton and soybean crops. EPA also identified certain environmental risks such as potential harm to pollinators, pollinator host plants such as milkweed, and other wildlife species. To address those risks, EPA included additional application requirements on the Enlist labels to reduce the amount of 2,4-D that could travel off target via spray drift or runoff. Those measures included a 30-foot spray drift buffer and a requirement that Enlist applicators select mitigation measures from a “pick list” developed by EPA for the purpose of limiting pesticide exposure to wildlife. Each mitigation measure is assigned a point value, and to apply Enlist One or Enlist Duo, applicators will need to achieve four to six points of runoff mitigation depending on their location. To learn more about EPA’s mitigation “pick list” for herbicides, click here.

The plaintiffs in Ctr. For Food Safety v. Envtl. Protection Agency filed a motion for summary judgment with the court in late August.  In that motion, the plaintiffs argue that EPA did not satisfy FIFRA’s “unreasonable adverse effects on the environment” standard when registering Enlist One and Enlist Duo because EPA (1) understated or ignored important costs to the environment; (2) overstated alleged benefits; and (3) improperly relied on ineffective mitigation.

First, the plaintiffs argue that EPA’s 2022 registration failed to fully analyze the environmental costs posed by use of Enlist products. According to the plaintiffs, when EPA drafted its 2022 registration decision it failed to evaluate current usage data for Enlist products. Instead, EPA relied on Enlist use data from 2018 and 2019 which the plaintiffs claim was before the widespread adoption of Enlist products. Additionally, the plaintiffs argue that EPA failed to consider the future use of Enlist which the plaintiffs claim will continue to increase during the seven-year registration period. By failing to consider the actual amount of Enlist products that would be applied during the registration period, the plaintiffs claim that EPA understated the environmental costs posed by Enlist. 

Next, the plaintiffs argued that EPA overstated the benefits of using Enlist One and Enlist Duo by exaggerating the effectiveness of Enlist products on herbicide-resistant weeds. The plaintiffs claim that although EPA suggests using Enlist with other pesticides or weed management tools to avoid contributing to the likelihood of increased herbicide resistance, evidence indicates that many applicators use Enlist products as their sole method of controlling glyphosate-resistant weeds. According to the plaintiffs, this increases the likelihood that weeds will grow more resistant to herbicides, which EPA failed to address when registering the pesticides.

Lastly, the plaintiffs claim that the mitigation measures that EPA added to the Enlist labels fail to effectively mitigate the adverse effects that Enlist One and Enlist Duo have on the environment. The mitigation measures stem from a new policy that EPA has adopted to limit the impacts of pesticide exposure to species of wildlife protected by the Endangered Species Act. Enlist One and Enlist Duo were some of the first products to have new mitigation measures added to their labels as a result of this policy. The mitigations for Enlist include a 30-foot spray drift buffer and a requirement that applicators achieve four to six points of runoff reduction by selecting one or more mitigation activities from a “pick list” developed by EPA. 

According to the plaintiffs, EPA’s reliance on a 30-foot drift buffer is contrary to evidence showing that 2,4-D can drift further off target. The plaintiffs also argue that the runoff mitigation measures identified by EPA do not effectively reduce pesticide runoff. They claim that most farmers that use Enlist products would not have to make any changes to their applications to achieve the required number of runoff points. Therefore, the plaintiffs argue that the spray drift and runoff mitigation measures do not effectively reduce the adverse effects that Enlist One and Enlist Duo have on the environment.

In filing a motion for summary judgment, the plaintiffs have asked the court to overturn the 2022 Enlist labels. If the court does so, it would likely result in neither product remaining available for use. Additionally, the court’s ruling in this case could have broader implications for EPA’s new mitigation policy. If the court agrees with the plaintiffs that the spray drift and runoff mitigations do not satisfy FIFRA, that could impact other pesticide labels that include mitigation measures based on EPA’s policy. However, should the court disagree with the plaintiffs and find that the mitigation measures meet the FIFRA “adverse effects on the environment” standard, that would suggest that other pesticide labels with similar mitigation measures could also survive a legal challenge. Ultimately, the outcome of this court case could have effects that are felt throughout the agricultural industry. To learn more about this lawsuit, click here.

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Rollins, Brigit. “Court Asked to Overturn Registrations for Enlist One and Enlist Duo.” Southern Ag Today 5(45.5). November 7, 2025. Permalink

On April 29, 2025, the Environmental Protection Agency (“EPA”) released its Insecticide Strategy, the most recent component of EPA’s effort to revise how the agency meets its Endangered Species Act (“ESA”) responsibilities while taking actions under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). Like the final Herbicide Strategy that EPA released last September, the final Insecticide Strategy works to reduce pesticide exposure to protected wildlife by implementing mitigation measures to curb pesticide spray drift and runoff. 

EPA first announced its new policy to address pesticide exposure to species protected under the ESA in April 2022. That month, EPA announced a plan to create different strategy documents to address herbicides, insecticides, fungicides, and rodenticides. According to EPA, the new approach was necessary to address what the agency has described as a “decades-old challenge” to satisfy the agency’s obligations under both the ESA and FIFRA.

The ESA is the primary federal wildlife protection law in the United States, while FIFRA serves as the nation’s primary federal statute regulating pesticide use. Under the ESA, all federal agencies, including EPA, are required to consult with the United States Fish and Wildlife Service (“FWS”) to ensure that the actions that federal agencies fund, authorize, or carry out will not “jeopardize” the continued existence of species protected under the ESA. Since the ESA was enacted, EPA has struggled to fully satisfy its consultation responsibilities when carrying out FIFRA actions. As a result, the agency has faced numerous lawsuits filed primarily by environmental groups seeking to compel EPA to complete ESA consultation on FIFRA actions. EPA’s new policy is aimed at resolving this on-going challenge.

Under its new approach, EPA has sorted all registered pesticides into broad groups and developed mitigation measures for each group designed to reduce pesticide exposure to protected species that occurs via pesticide spray drift and runoff or erosion. In 2024, EPA issued its draft Insecticide Strategy, outlining the various mitigation measures the agency was considering for insecticides. Following a 60-day public comment period that ran from July to September, EPA has officially released the final Insecticide Strategy. 

The final Insecticide Strategy outlines various mitigation measures designed to reduce pesticide exposure to protected invertebrate species by limiting pesticide spray drift and runoff/erosion. As in the draft Insecticide Strategy, the final Insecticide Strategy lays out a three-step framework that EPA will use to determine what additional mitigation measures to include on an insecticide label. Under step 1, EPA will establish the likelihood that a particular insecticide will have population-level impacts to protected wildlife species as either “not likely,” “low,” “medium,” or “high.” In general, mitigation will be lower when the potential for population-level impacts is lower and higher when the potential is higher. 

During step 2 of the process, EPA will determine which mitigation measures to apply. To reduce spray drift, the Insecticide Strategy relies on buffer zones and application equipment with the size of the buffer zone depending on the insecticide’s expected population-level impacts and the method of application. The largest buffer zone identified in the Strategy is a 300 foot buffer for aerial applications. All other buffer zones are identified as 100 feet or less. 

To reduce insecticide runoff and erosion, the Insecticide Strategy employs a so-called “menu” of mitigation measures. Each mitigation measure is assigned a point value from 1 to 3 with high efficacy mitigations receiving 3 points, medium efficacy mitigations receiving 2 points and low efficacy mitigations receiving 1 point. Based on the degree of population-level impacts EPA identified during step 1 of the Insecticide Strategy framework, the agency will identify the number of runoff/erosion mitigation points needed to apply a particular insecticide. Insecticides identified as having a low population-level impact will need 3 points, insecticides with a medium impact will need 6 points and insecticides with a high impact will need 9 points. 

Additionally, EPA has assigned counties different mitigation points based on how prone the fields in each county are to runoff. Counties with medium runoff potential will receive 2 mitigation points, counties with low runoff potential will receive 3 mitigation points and counties with very low runoff potential will receive 6 mitigation points. An applicator in a county with very low runoff potential applying an insecticide that requires 9 mitigation points will only need to achieve 3 extra mitigation points, while an applicator in a county with a low runoff potential applying the same insecticide would need to achieve 7 extra points.

In response to comments it received on the draft Insecticide Strategy, EPA has said that it is working towards certifying voluntary conservation programs the participation in which would automatically count as 9 mitigation points. Additionally, EPA will grant mitigation points to farmers and applicators who do not participate in a conservation program but use a qualified technical expert to plan insecticide applications.

Finally, during step 3 of the Insecticide Framework, EPA will determine where in the contiguous United States the spray drift and runoff/erosion mitigations will be required. Mitigation measures that are considered necessary across the entire contiguous United States will be included on an insecticide’s general label. Those mitigation measures that are only required in certain geographic areas known as Pesticide Use Limitation Areas (“PULAs”) will be posted as bulletins on EPA’s website Bulletins Live! Two. The insecticide’s label will instruct users to check Bulletins Live! Two prior to making an application to determine if there are any relevant PULAs with which the applicator needs to comply.

Most of the mitigation measures identified in the Insecticide Strategy are intended to reduce exposure to protected species that are not located on agricultural fields. However, EPA has identified 4 protected species that can be found on agricultural fields and would require additional in-field mitigation measures. EPA notes that mitigation measures for those species would be both geographically limited and limited to certain times of the year. Any on-field mitigations would be required through PULAs on Bulletins Live! Two.

EPA will begin implementing the Insecticide Strategy as it registers new insecticide products for use and conducts registration review of existing insecticides. 

Despite being dubbed the “final” Insecticide Strategy, EPA notes that it will continue to seek engagement on and develop certain aspects of the Strategy such as identifying additional conservation programs that would count as 9 mitigation points and further refining species maps to create more accurate PULAs. Overall, EPA believes that implementing the Insecticide Strategy will result in both more efficient ESA consultations with FWS and insecticide labels better equipped to withstand judicial review.

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Rollins, Brigit. “EPA Publishes Final Insecticide Strategy.” Southern Ag Today 5(21.5). May 23, 2025. Permalink

In November 2024, the D.C. Circuit Court of Appeals ruled that the Council on Environmental Quality (“CEQ”) does not have authority to issue binding regulations. Since the late 1970s, CEQ has issued regulations that implement the National Environmental Policy Act (“NEPA”). Federal agencies have followed these regulations when carrying out the NEPA while courts have consistently enforced them. Following the D.C. Circuit’s decision in Marin Audubon Soc’y v. Fed. Aviation Admin., No. 23-1067 (D.C. Cir. 2024), it is unclear what authority CEQ will have going forward. 

The primary purpose of NEPA is to “declare a national policy which will encourage productive and enjoyable harmony between man and his environment[.]” To achieve this goal, NEPA outlines a process by which federal agencies can assess the environmental impacts of their actions before making final decisions. 

NEPA provides two levels of environmental review. For proposed actions that have a “reasonably foreseeable significant effect on the quality of the human environment,” agencies should issue an environmental impact statement (“EIS”) that provides detailed information about the expected impacts of the action. For all other actions, agencies should prepare a “concise” document known as an environmental assessment (“EA”) that will either establish the agency’s “finding of no significant impact” or conclude that preparation of an EIS is necessary. NEPA also allows federal agencies to identify categories of actions that do not have significant effects on the environment. Such actions are called “categorical exclusions” and do not require NEPA review. 

NEPA also established CEQ and laid out its functions and duties, such as reviewing federal government activity to ensure NEPA compliance and making an annual report to the President on the “state and condition of the environment.” 

In 1970, President Nixon issued an Executive Order directing CEQ to issue “guidelines” to federal agencies on how to prepare NEPA documents. In 1977, President Carter issued a separate Executive Order empowering CEQ to issue regulations rather than guidelines. CEQ’s first round of NEPA regulations were issued in 1978 and established a framework that is still largely in effect today. Since 1978, federal agencies have followed those regulations while drafting NEPA documents and the Supreme Court in Andrus v. Sierra Club, 442 U.S. 347 (1979), held that CEQ’s NEPA regulations are “entitled to substantial deference.”

The plaintiffs in Marin Audubon Soc’y v. Fed. Aviation Admin. initiated their lawsuit in early 2023 to challenge a finalized plan between the FAA and the NPS that would allow tourism flights to operate over four parks in northern California. When the FAA and the NPS first announced the air tour plan, they also announced their intent to develop an EA. However, the agencies ultimately concluded that the plan was categorically exempted from NEPA review. That decision prompted the plaintiffs to file suit, claiming that the FAA and the NPS had violated NEPA by failing to conduct necessary review.

The D.C. Circuit Court of Appeals issued its ruling in Marin Audubon Soc’y v. Fed. Aviation Admin. on November 12, 2024. While the court concluded that the FAA and the NPS had violated NEPA by approving the air tour management plan without drafting an EA or an EIS, the bulk of the court’s decision focused on whether CEQ had authority to issue NEPA-implementing regulations. Ultimately, the court concluded that CEQ lacked that authority.

According to the court, the text of NEPA does not grant CEQ specific rulemaking authority. While NEPA provides that CEQ shall “make recommendations to the President,” Congress did not include language instructing CEQ to draft rules and regulations to implement NEPA. Instead, CEQ relies on the Executive Orders as the basis for its rulemaking authority. According to the D.C. Circuit, agencies cannot derive rulemaking authority from Presidential Executive Orders. The court relied on the Take Care Clause of the U.S. constitution which provides that the President “shall take care that the laws with faithfully executed[.]” Specifically, the court concluded that the Take Care Clause does not authorize the President to grant federal agencies rulemaking authority to “faithfully execute” the laws passed by Congress. Only Congress has the authority to grant federal agencies rulemaking power. Because NEPA does not specifically instruct CEQ to adopt implementing regulations, the D.C. Circuit concluded that CEQ does not have the authority to issue regulations, and any regulations it has issued are non-binding.

The decision was issued by a three-judge panel, but only two judges joined in the majority ruling. The third judge on the panel dissented. Primarily, the dissenting judge noted that neither the plaintiffs nor the defendants in Marin Audubon Soc’y v. Fed. Aviation Admin. challenged CEQ’s regulations. According to the dissent, the majority’s opinion violated the “principle of party presentation,” a legal concept which provides that judges may only consider the legal questions that are presented and argued before the court. The dissent concluded that there was no reason for the majority to consider the validity of the CEQ regulations because no one had asked them to do so.

It is currently unclear exactly what impact the decision in Marin Audubon Soc’y v. Fed. Aviation Admin. will have. While the court declined to vacate CEQ’s NEPA regulations, the decision establishes a precedent that CEQ lacks rulemaking authority, and that all regulations it issues are non-binding. The parties are expected to seek an en banc review of the decision, but the timeline is currently unclear.

In the meantime, the ruling is likely to cause delays for any activity currently undergoing NEPA review as federal agencies determine how to proceed. If the decision ultimately withstands further judicial review, federal agencies may face the challenge of drafting their own NEPA regulations or otherwise establishing some sort of policy to ensure that the agency meets its NEPA obligations. At the moment, the decision in Marin Audubon Soc’y v. Fed. Aviation Admin. has provided more questions than answers.

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Rollins, Brigit. “D.C. Circuit Rules that CEQ Lacks Rulemaking Authority.” Southern Ag Today 5(1.5). January 3, 2025. Permalink

On June 28, 2024, the United States Supreme Court issued its highly anticipated decision in Loper Bright Enters. v. Raimondo, No. 22-451 (2024). The case focused on the question of federal agency authority, and asked the Court to revisit its decision in the 40-year-old Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) which famously established a legal test for judges to use when deciding whether a federal agency had acted outside its statutory authority. In a 6-3 decision, the Supreme Court officially overturned Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., ruling that “courts may not defer to an agency interpretation of the law simply because a statute is ambiguous[.]”

Chevron deference is a legal doctrine established by the Supreme Court to help courts determine when a judge should defer to a federal agency’s statutory interpretation. To apply Chevron deference, courts follow a two-step framework. First, the court should consider “whether Congress has directly spoken to the precise question at issue.” To make that determination, the court will review the relevant statute to see whether the language clearly addresses the issue targeted by the agency’s regulation or whether the statutory language is “ambiguous.” 

If a court finds that the language is ambiguous, it will proceed to step two which requires the court to determine whether the agency’s statutory interpretation is “reasonable.” If the court finds that the interpretation is reasonable, then it must defer to the agency even if the court would have adopted a different interpretation. If the court concludes that the agency’s interpretation is not reasonable, then it may overturn the agency’s regulation. 

In the decades since Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. was first decided, it has become highly controversial. While some view Chevron deference as another tool of judicial interpretation, others regard it as a limitation on judicial authority.  

At the Supreme Court, the plaintiffs in Loper Bright Enters. v. Raimondo challenged the doctrine of Chevron deference, specifically asking the Court to either overrule the doctrine or clarify its scope. In a majority ruling authored by Chief Justice Roberts, the Supreme Court overruled the doctrine, finding that the Administrative Procedure Act (“APA”) requires courts to “exercise their independent judgment” when determining whether an agency has acted outside of its statutory authority, and that “courts may not defer to an agency interpretation of the law simply because a statute is ambiguous[.]” The majority relied on past Supreme Court cases that address the role of courts and federal agencies in statutory interpretation, and the APA to reach its conclusion.

In overturning Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court began by noting that Article III of the United States Constitution assigns to the federal judiciary the responsibility to hear and decide all “cases” and “controversies.” The Court then cited the foundational Supreme Court opinion, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). In that early case, which is regarded as establishing the scope of judicial review, the Supreme Court held that it is “the province and duty of the judicial department to say what the law is.” 

 Next, the Court reviewed its pre-Chevron case law on agency deference. The Supreme Court cited United States v. Moore, 95 U.S. 760 (1878) which explains that courts should give “the most respectful consideration” to federal agency interpretations of statutes they are tasked with administering because employees of such agencies are considered “masters of the subject[.]” The Court also cited Skidmore v. Swift & Co., 323 U.S. 134 (1944), where the Supreme Court held that a federal agency’s statutory interpretations “constitute a body of experience and informed judgement to which courts and litigants [could] properly resort for guidance,” but that such interpretations would not control a reviewing court’s own statutory interpretations.  After reviewing these cases, the majority concluded that prior to its ruling in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court had consistently held that while a federal agency’s statutory interpretations could be given due respect by a reviewing court, it was ultimately up to the judiciary to determine the proper meaning of the law.

Along with reviewing its own case law, the Supreme Court also examined the text of the APA. The APA is the federal law that governs the way federal administrative agencies develop regulations, and  establishes standards for judicial review of agency actions.  The law states that “[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” 5 U.S.C. § 706. According to the Court, that statutory language represents Congress’s intent to have reviewing courts, not agencies, “decide all relevant questions of law” and “interpret […] statutory provisions.” The Court concluded that the Chevron doctrine cannot be reconciled with the APA because Chevron deference requires courts to adopt reasonable agency interpretations of statutory language, even if the court would have reached a different interpretation. According to the majority, this does not comply with the APA’s requirement that courts “shall decide all relevant questions of law.”

Based on its review of both previous Supreme Court decisions, and the text of the APA, the majority in Loper Bright Enters. v. Raimondo concluded that “[i]n an agency case as in any other […] there is a best reading [of the law] all the same – ‘the reading the court would have reached’ if no agency were involved.” Following this ruling, when a court is presented with a case that involves statutory interpretation, it may not “defer to an agency interpretation of the law simply because a statute is ambiguous.” Instead, it is the role of the court to apply its own judgement to determine what the law says.

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Rollins, Bridgit. “In Landmark Ruling SCOTUS Overturns ‘Chevron’ Deference.” Southern Ag Today 4(30.5). July 26, 2024. Permalink

2023 was a landmark year for Clean Water Act (“CWA”) regulation with a new definition of the key term “waters of the United States” (“WOTUS”) issued by the Environmental Protection Agency (“EPA”) at the start of the year, a Supreme Court decision released in May, and an updated WOTUS definition from EPA in August. While 2024 is unlikely to be as dynamic as the previous year, on-going lawsuits challenging EPA’s updated WOTUS definition will continue to impact how the CWA is implemented throughout the country.

By the end of 2023, the current WOTUS definition that EPA released last August was enjoined in twenty-seven states. These states initially filed three separate lawsuits against EPA to challenge the WOTUS definition the agency released in early 2023. They have since updated those lawsuits to address the updated WOTUS rule EPA released following the Supreme Court’s ruling in Sackett v. EPA to conform the definition to the Court’s decision. 

The arguments raised by the plaintiff states in all three lawsuits are largely similar. In their initial filings challenging the first of EPA’s 2023 WOTUS definitions, plaintiffs in State of Texas v. EPA, No. 3:23-cv-00017 (S.D. Tex.), State of West Virginia v. EPA, No. 3:23-cv-00032 (D. N.D.), and Commonwealth of Kentucky v. EPA, No. 23-5343 (6th Cir.) raised three primary claims. First, that the 2023 WOTUS definition exceeded the authority granted to EPA by the CWA. Second, that the definition violates the Tenth Amendment of the United States Constitution which delegates the power to regulate land and water resources to the states. Finally, the definition violates the Major Questions Doctrine because Congress did not give EPA clear authorization to adopt the 2023 WOTUS rule.

After the Supreme Court issued its decision in Sackett v. EPA, all three of the lawsuits challenging EPA’s WOTUS rule were stayed while EPA revised the definition to bring it in line with the Court’s ruling. EPA released its updated WOTUS definition in August, removing references to wetlands that did not share a continuous surface connection with jurisdictional waters, and references to any waters that were not “relatively permanent.” Shortly afterwards, the plaintiff states revived their lawsuits, pivoting to challenge EPA’s updated WOTUS rule.

The amended lawsuits make largely the same arguments against the updated 2023 WOTUS rule as they did against the initial 2023 WOTUS rule. Once again, the states argue that the WOTUS definition exceeds the authority granted under the CWA, claiming that the updated definition incorporates waters that are outside of the relatively permanent test the Supreme Court articulated in the Sackett ruling. Similarly, the states claim that updated definition continues to violate both the Tenth Amendment and the Major Questions Doctrine by regulating an area of vast economic importance without clear Congressional authorization. Additionally, the states claim that the updated WOTUS definition was issued without an opportunity for public comment in violation of federal law.

The National Agricultural Law Center will continue to provide updates as these cases progress. For more information on WOTUS, check out the resources available on our website.

Rollins, Brigit. “WOTUS Update.” Southern Ag Today 4(5.5). February 2, 2024. Permalink