The use of herbicides and pesticides on crops has become the default method for conventional agriculture. Despite growing public concerns over the use of chemicals on our food supply, these products continue to saturate the market and are utilized at a steady rate. While researchers continue to evaluate the long term effects these potent chemicals have on humans and the environment, another chemical has been added to farmers’ ever-growing arsenal. The Environmental Protection Agency has proposed to expand the use of Enlist Duo, an effective weed killer, from 15 to 34 states. But should we be worried about the toxicity of this popular herbicide?

Enlist Duo

Originally, in 2014, the Environmental Protection Agency (EPA) approved the use of a brand new herbicide, Enlist Duo, for genetically modified corn and soybean crops. Enlist Duo is a chemical manufactured by Dow AgroSciences, which is a subsidiary of the Dow Chemical Company–one of the largest chemical companies in the world.

After the initial approval of Enlist Duo, the EPA asked a court to give it another opportunity to re-review the approval of the chemical. In a highly unusual move, the agency asked for a withdrawal of its own approval of the product. According to the EPA, it had reviewed the patent submitted by Dow to the U.S. Patent and Trademark Office and discovered a significant discrepancy. Particularly, the company claimed the product’s combination of two chemicals, 2,4-D and glyphosate, amplified each other and created a far more potent herbicide.

The EPA was concerned that Dow had not disclosed this synergy during the agency’s initial review of the product’s environmental and health risks. The agency scientists wanted to decide if there needed to be a larger no-spray zone at the edge of farm fields. Studies where rats, rabbits, birds, and fish were given one large dose of Enlist Duo showed no increased toxicity in the animals after two weeks. However, the agency never requested that Dow chronically dose rats with a combination of 2,4-D and glyphosate. Therefore, long-term health effects of the chemical mixture are unclear.

“Pesticide spraying” Image Courtesy of Jetsandzeppelins : License (CC BY 2.0)

Lawsuit

Several environmental groups, led by the National Resources Defense Council, brought a lawsuit against the EPA over Enlist Duo in 2014. The plaintiffs stated that the EPA had violated the law because it had not adequately considered the effect that Enlist Duo would have on public health and the environment, particularly the monarch butterfly population.

Dow, of course, opposed the allegations as well as the EPA’s request to vacate the original approval, suggesting instead that the court remand the registration back to the EPA for further evaluation. The company voluntarily agreed to stop sales of the product while the EPA reevaluated it. Additionally, Dow stated that it had abandoned the synergy patent in question when a thorough review revealed that the particular synergies were not in the final formulation of Enlist Duo. However, advocacy groups noted in a legal filing that Dow abandoned the patent a year after the EPA approved Enlist Duo, and only after the EPA requested synergy data from Dow.

Eventually, the 9th U.S. Circuit Court of Appeals upheld the EPA’s original approval. The three-sentence judicial order did not elaborate on any reasoning for the decision. This meant that Dow could continue to market the chemical to farmers for sale, even while the EPA was re-reviewing its initial approval. The company reneged its voluntary offer to cease sales, claiming the offer was never agreed to; thus, the chemical remained on the market.

2,4-D and Human Health Effects

Last year, the Chicago Tribune released an investigative article that revealed that the EPA had changed its interpretation of a key study of 2,4-D. Essentially, the EPA changed the no-adverse-effect level of 2,4-D from 7mg/kg to 21mg/kg in rats, paving the way for the agency to reduce consumer protections. EPA scientists dropped a tenfold child-safety factor after conducting a study that concluded there was no longer evidence of a special susceptibility of children to the chemical compound. Regulators set the allowable daily intake of 2,4-D for people at 0.21mg/kg. Thus, the significant change allowed for 41 times more 2,4-D to enter the American diet than previously allowed, an astounding change.

2,4-D has been around since the 1940’s and was one of the ingredients in Agent Orange, a highly toxic and controversial herbicide used by the U.S. military as part of its herbicidal warfare program during the Vietnam War. The EPA has discounted safety data showing that 2,4-D has been linked to cancer and other health problems, such as hypothyroidism and Parkinson’s disease. In order to make the change in allowable daily intake, the EPA has tossed aside research produced by Dow’s own scientists regarding kidney problems and kidney lesions caused by 2,4-D.

The overuse of chemicals, like Roundup, year after year has resulted in an increase in weed resistance, or “superweeds,” leaving companies scrambling to find more effective products to market to farmers. As a result, agriculture is now turning back toward older, more toxic products, like 2,4-D. But if you’re concerned about exposure to more toxic weedkillers, disclosures in Dow’s patent applications are very telling. The company’s application for genetically modified corn and soybeans foreshadows a day when weeds develop a resistance to both glyphosate and 2,4-D. The records show that Dow eventually envisions a day when the company must add even more traits to corn and soybeans so that the crops can survive being sprayed with up to 17 different chemicals.

Concerns Regarding Enlist Duo Use

One of the largest concerns surrounding Enlist Duo use is that Dow may have lied on its patent application. A Dow spokesperson adamantly denies that contention, stating that the EPA and the U.S. Patent and Trademark Office have “different standards of data requirements” and the company’s claims that the two chemicals amplified each other were “based on a limited dataset.”

After the re-review and approval of Enlist Duo this year, the EPA has also announced a proposal to expand where the new herbicide can be used. Currently it is used to suppress weeds on corn and soybean crops. Now, the EPA is considering whether to allow its use on cotton crops. This expansion means that the new herbicide may be approved for use in 34 states, as opposed to the original 15 states. Moreover, the World Health Organization has issued findings that glyphosate and 2,4-D are probable and possible carcinogens, respectively, in addition to the other health concerns related to 2,4-D.

Monarch Butterfly Populations

In addition to human health hazards, environmentalist groups are concerned about Enlist Duo’s effect on the monarch butterfly population. Monarch butterflies have struggled in recent years, with populations in a steep decline due to the overuse of glyphosate products, like Roundup. Enlist Duo’s chemicals specifically obliterate milkweed, the plant that monarchs need to survive. A 1999 survey found that milkweed was in at least 50 percent of Iowa corn and soybean crops; by 2009, milkweed was only found in 8 percent of those same fields.

Additionally, estimations of the monarch butterfly populations have remained low, despite an initial bump in numbers, after a winter storm killed millions before they ever left the Mexican monarch reserve. Storms devastated 133 acres of trees west of Mexico City and affected over 7 percent of monarchs, with about 6.2 million butterflies frozen or killed.

“Monarch caterpillar on common milkweed in Minnesota” Image Courtesy of USFWSmidwest : License (CC BY 2.0)

The EPA’s failure to consider the effects of Enlist Duo on monarch butterflies has environmentalists extremely concerned for the ailing population, teetering on the brink of extinction.

Conclusion

The market for Enlist Duo is potentially massive, with 94 percent of soybeans and 89 percent of corn planted in the U.S. genetically modified to survive herbicides, primarily the glyphosate in Roundup. However, the EPA’s suggestion to more than double the number of states permitted to use Enlist Duo has outraged environmentalists and advocates across the country. Many people believe that reviving a World War II-era chemical to combat superweeds isn’t the best solution for the sustainability of industrial agriculture–especially when it could have a negative effect on the monarch butterfly population. The EPA contends that the chemical is “perfectly safe,” and poses no long-term health risks to humans.

The EPA is accepting public comments through December 1, 2016 regarding the agency’s proposal to expand the use and registration for Enlist Duo. 

Resources

Primary

EPA.gov: Registration of Enlist Duo

Additional

Dow: Annual Reports

NRDC: EPA Proposes to Re-Approve Combination Herbicide Enlist Duo

NRDC: EPA Unlawfully Approved Herbicide Enlist Duo

Chicago Tribune: Weedkiller’s Revival is Cause for Concern

Chicago Tribune: EPA Tosses Aside Safety Data, Says Dow Pesticide for GMOs Won’t Harm People

Chicago Tribune: Court Clears Way for Revival of Worrisome Weedkiller

Chicago Tribune: Congress Questions EPA About Dow’s Enlist Duo Pesticide Risks

CBS DFW: EPA May Increase Use Of Weed Killer Despite Concerns

The Guardian: Storms Devastate Monarch Butterflies’ Forest Habitat in Mexico

NRDC: EPA Unlawfully Approved Herbicide Enlist Duo

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post Enlist Duo: Effective New Herbicide or Monarch Butterfly Threat? appeared first on Law Street.

Imagine the military visiting your hometown for special training exercises. Their activities wipe out your cell signal and keep your car from starting. Their exercises make so much dust and noise, you can’t hear, see, or think straight for days.

That’s okay right?

Probably not. Yet marine mammals have suffered equivalent disruptions to their daily lives during naval exercises for decades. The active sonar used in training exercises interferes with their primary guiding sense of hearing and causes them to flounder during simple tasks like feeding or navigation. As the exercises grow in size and sophistication, so does the extent of the damage they cause. Since marine mammals can’t defend themselves, several environmental organizations stood up to the government agency that’s supposed to defend them. Here’s what happened when environmentalists took on the government to save the whales, dolphins, sea turtles, and other marine animals.

Naval War Games Aren’t Games For Marine Mammals

The Navy strives to “maintain, train, and equip combat-ready Naval forces capable of winning wars, deterring aggression, and maintaining freedom of the seas.” The Navy makes sure it is capable of winning wars through training exercises, often called “war games.” Last year, the Navy planned a series of trainings classified as “military readiness activities” to occur over the next five years in the Hawaii-Southern California Training and Testing (HSTT) study area. A major downside of the trainings? They use active sonar that could potentially kill and injure the marine mammals living in the HSTT region.

Using active sonar just means you’re shooting sounds, called pings, into the water to listen for echoes. Sonar stands for “sound navigation and ranging” because the echoes returned from the pings help people and animals find and navigate around objects in their path. You can’t control the path of a ping; under water they spread out in ripples, touching everything in a given radius. This can get really noisy, really fast, as illustrated by this abstract rendition of sonar below.

If the ping hits a pile of rocks, no harm done. If the ping hits a marine mammal with ultra-sensitive hearing, it can interfere with their basic survival functions.

Marine mammals have evolved with an attuned sense of hearing that enables them to navigate through the murky undersea world, communicate with other animals, and even find food. Hearing is a marine mammal’s primary survival tool. So when military sonar pings rocket through the waves every few seconds, marine mammals can’t perform the most basic functions of life. Ships with sonar cause whales to stop eating and migrating like they should. If the animals get too close, sudden sounds can damage their life-giving hearing permanently and they could be perpetually disoriented forever. For humans, this would be like trying to walk, talk, and drive with continuously fogged-up glasses.

Even the vibrations from the sounds can cause damage under water. You know how the sound of many live drums can make it seem like your whole body is vibrating? Now imagine that times ten. When you hear on land, only your eardrums vibrate. Under water, sound waves rattle and penetrate your entire body. Intense noises–like those used in the naval trainings–can cause deadly hemorrhaging in marine mammals as powerful sounds penetrate their bodies.

This video shows how whales react to the screeching sounds of Navy sonar. They cluster closer to shore, stop diving for food, and change their swimming directions erratically. Some whales even beach themselves in an effort to escape the piercing sounds.

The Navy has been using active sonar in its trainings for years and environmental groups have fought it for almost as long. Past court rulings weighed the need to protect the public over the life of marine mammals. However, the Navy’s latest planned trainings in the HSTT area pushed the marine mammal death toll past levels evaluated in the past. The new exercise plan would include 500,000 hours of sonar, in other words, 500,000 hours of possible damage to marine mammals. According to this Washington Post article, the Navy’s own damage estimate stated 155 animals would die, 2,000 would be permanently injured, and 10 million would have their lives disrupted by the exercises. The Natural Resources Defense Council says this marks an 1,100 perecent increase when compared to other trainings from the past five years.

Armed with new facts and figures, the Natural Resources Defense Council, Cetacean Society International, the Animal Legal Defense Fund, and the Pacific Environment and Resources Center* brought forward a new lawsuit they hoped would succeed where similar efforts had failed in the past. Their case was named Conservation Council for Hawai‘i et al. v. National Marine Fisheries Service et al.

The Case

The plaintiffs didn’t go after the Navy itself, but the regulatory agency that approved the Navy’s training plan, the National Marine Fisheries Service (NMFS). Here’s a snippet from their mission page:

Under the Marine Mammal Protection Act and the Endangered Species Act, NOAA Fisheries works to recover protected marine species while allowing economic and recreational opportunities.

The Marine Mammal Protection Act prohibits the “take” (defined as “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill) of marine mammals. When the Navy planned its new training exercises, it had to apply for an exception to this rule through NMFS. Their application outlined the potential death and injury counts, but the NMFS deemed those losses negligible. The attorneys on the case countered that the NMFS evaluation of the marine life damage neglected to grasp and acknowledge the full extent of potential damage caused by the Navy trainings.

The Endangered Species Act (ESA) calls for the government to protect endangered and threatened species. According to the Environmental Protection Agency, the “ESA requires federal agencies to ensure that any action they authorize, fund, or carry out, will not likely jeopardize the continued existence of any listed species, or destroy or adversely modify any critical habitat for those species.” Attorneys said the NMFS clearly neglected their duties under the ESA as many of the marine mammals found in the Navy’s massive HSTT study area are endangered.

The Verdict

U.S. District Judge Susan Oki Mollway ruled the NMFS had fallen short of its legal obligations to marine mammals by approving the Navy’s proposed training plan. She called the NMFS decision to refer to marine mammal damages from the naval exercises negligible, “arbitrary and capricious” and in violation of the Marine Mammal Protection Act. She also confirmed NMFS’s violation of the ESA, as eight of the thirty-nine marine mammal species living in the HSTT study area are endangered.

While the ruling affirmed the charges brought against the NMFS, specific remedies won’t be decided for the next few months. The decision marks a battle won, but it’s not quite the end of the war.

A Compromise?

The Natural Resources Defense Council released a statement from case attorney Zak Smith, summarizing what it hopes to get from the case:

The Navy has solutions at its disposal to ensure it limits the harm to these animals during its exercises.  It’s time to stop making excuses and embrace those safety measures.

Environmental groups aren’t asking for a complete cease and desist of all naval trainings involving active sonar. They’re just demanding the military use some of its extensive resources to develop safety measures to mitigate marine mammal damage. One option would be decreasing the test area size. Right now, the HSTT test area covers about 2.7 million square nautical miles, an area about the size of the entire United States. Another option is taking particular care to avoid areas where animals might be mating, giving birth, or feeding.

In the video above, Ken Balcomb from the Center for Whale Research says the Navy just needs to learn when and where to practice. He says just as the government would not test nuclear weapons in a crowded downtown area, they should not test active sonar in oceans teeming with delicate and endangered wildlife. For now, environmental groups remain optimistic that trainings and marine mammals can coexist safely.

Resources

Primary

Federal Register: Takes of Marine Mammals Incidental to Specified Activities; U.S. Navy Training and Testing Activities in the Hawaii-Southern California Training and Testing Study Area

Environmental Protection Agency: Endangered Species Protection Program

Additional

Washington Post: Navy War Games Face Suit Cver Impact on Whales, Dolphins

One Earth: A Silent Victory

Smithsonian Ocean Portal: Keeping An Ear Out For Whale Evolution

Los Angeles Times: Judge Rules Navy Underestimated Threat to Marine Mammals from Sonar

Natural Resources Defense Council: Court Rules Navy War Games Violate Law Protecting Whales and Dolphins

Natural Resources Defense Council: Groups Sue Feds for Putting Whales and Dolphins in Crosshairs throughout Southern California and Hawaiian Waters

Natural Resources Defense Council: Lethal Sounds

Law 360: Navy Loses Training Authorization Over Animal Concerns

Earthjustice: Sonar Complaint

Ashley Bell

Ashley Bell communicates about health and wellness every day as a non-profit Program Manager. She has a Bachelor’s degree in Business and Economics from the College of William and Mary, and loves to investigate what changes in healthy policy and research might mean for the future. Contact Ashley at staff@LawStreetMedia.com.

The post Government vs. Environmentalists: Who is Protecting Marine Wildlife? appeared first on Law Street.

Activists are pushing the Environmental Protection Agency (EPA) to take a drastic regulatory step that could have significant repercussions for the U.S. economy. At issue is the Pebble Mine — a natural resource project in Alaska that could yield more copper than has ever been found in one place anywhere in the world.

With more than 80 billion pounds of copper, Pebble Mine also holds other strategic metals like molybdenum and rhenium, which are essential to countless American manufacturing, high-tech and national-security applications. However, before plans have even started to be developed, the EPA seems to have responded to activist groups, such as the National Resources Defense Council. The EPA has carried out initial assessments of the site and has already taken a position to veto the project before Pebble Partnership even applied for permits.

The goal is to kill the proposal before it starts. The NRDC and other activist groups worry that once in progress the project will continue unless stopped early on, saying that, “EPA’s study (and intervention) is critically important. If left to its own devices, the state of Alaska has never said no to a large mine.”

However, some groups are speaking out against this preemptive EPA vetoing power. The Center for American Progress, for example, has come out in favor of letting the permitting review take place, even though the group has criticized the Pebble Mine project.

[See Full Article: Alaska Dispatch]

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Featured image courtesy of [emydidae via Flickr]

Davis Truslow

Davis Truslow is a founding member of Law Street Media and a graduate of The George Washington University. Contact Davis at staff@LawStreetMedia.com.

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