Ag in the Courtroom

John Dillard grew up on a beef cattle farm and now works as an agricultural and environmental litigation attorney with OFW Law. His blog analyzes legal issues and court decisions that affect America’s farmers and ranchers.

Environmentalists, Glyphosate and Butterflies

Feb 26, 2014

Natural Resource Defense Council (NRDC) has petitioned EPA to restrict the use of glyphosate herbicide to protect the dwindling population of the monarch butterfly. The petition states that the rapid adoption of glyphosate-resistant (Roundup Ready®) corn and soybeans in the Midwest has depleted the milkweed "community," which serves as the exclusive food source for monarch butterfly larvae along the route of its annual migration from Canada to Mexico.

NRDC petitioned EPA under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). FIFRA requires EPA to register each pesticide used in the U.S. and set parameters for the pesticide’s use, such as target species, labeling requirements, and restrictions on use. Each pesticide must undergo a re-registration process every 15 years. The current glyphosate re-registration process will be completed in 2015; however, NRDC has requested EPA take action to restrict the use of glyphosate prior to the scheduled completion of the re-registration process.

Under FIFRA, EPA can register a pesticide only if it first determines that the pesticide "will perform its intended function without unreasonable adverse effects on the environment." FIFRA defines an unreasonable adverse effect on the environment to include "any unreasonable risk to . . . the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide." In its petition, NRDC argues that the loss of milkweed communities brought about by increased glyphosate use has brought about unreasonable adverse effects on the environment because it has decreased monarch butterfly habitat.

It is hard to tell if EPA will take any action on NRDC’s petition. While NRDC may have a feasible argument that the increased use of glyphosate is adversely affecting the monarch butterfly population, the law requires EPA to consider the costs and benefits of pesticide use. When viewed objectively, there are a tremendous amount of environmental benefits provided by glyphosate-resistant technology. The most striking benefit is the increased use of no-till or reduced till practices, which decreases soil erosion, water pollution, and fossil fuel use and improves carbon sequestration. Additionally, glyphosate replaces the use of other pesticides that pose larger environmental risks.

Farmers have been trying to get rid of milkweed for as long as they have been planting crops in North America. Now, with the advent of glyphosate-resistant technology, they finally have the tools to effectively control the weed. In other words, if farmers could have eliminated milkweed from agricultural lands prior to Roundup Ready® technology, they would have. I see no reason why farmers should have to handicap themselves to set aside a portion of their land for milkweed habitat, or more dramatically, give up glyphosate as a weed-control tool, simply to protect one species of butterfly.

To their credit, NRDC’s petition does identify some alternatives to an outright ban on glyphosate or mandatory refuges (like those in place for Bt corn and cotton). While NRDC is not necessarily concerned about a farmer’s need to control weeds, it does suggest that EPA could solve the butterfly problem by restricting glyphosate use in some non-agricultural applications, such as roadside ditches and electric line right-of-ways. If EPA does seriously consider NRDC’s petition, this option may be the right one to take for agriculture. Roads and power line right-of-ways could provide a corridor of travel for the monarch butterfly without imposing a burden on agricultural uses for glyphosate.

I’ll be following this issue and will update you if there are any developments.

John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA. John focuses his practice on agricultural and environmental law. He occasionally tweets at @DCAgLawyer. This column is not a substitute for legal advice.