Glyphosate to be debated in High Court
Photo:
AFP
The judicial review hearing - which is expected to last two days - will see ELI challenge the EPA's 2024 refusal to reassess glyphosate and glyphosate-based substances.
There had been significant scientific research on the herbicide since it was first introduced to New Zealand about 50 years ago, Environmental Law Initiative senior legal advisor Tess Upperton said.
That was the grounds ELI used in their formal request for a risk reassessment, but the EPA refused last year, prompting the judicial review set to be heard today and tomorrow.
Upperton said while the EPA had reviewed some aspects over the years, such as looking at carcinogenicity of glyphosate in 2015, there had never been a full risk assessment, which is the usual protocol when a new product is first approved for use.
"That's largely because it was first approved in the 1970s. We have asked the EPA for a record of that original risk assessment. They don't have a copy of that. They don't know what it is."
Since then, RoundUp and the more than 90 other glyphosate based formulas sold in New Zealand had been "grandfathered through successive regimes," she said, even though some of the glyphosate-based formulas have been found to have additional ingredients that amplify glyphosates toxicity.
In 2021, the EPA issued a "call for information" to assess whether there were grounds to reassess the use of glyphosate.
"It went out to the public and asked industry, NGOs, lay people, how do you use glyphosate? What do you see as the risks? And they got a lot of useful information back, but that isn't providing scientific evidence of what the risks are, which there's a lot of information about overseas."
She said there was a dearth of domestic studies, particularly on the impact on indigenous species in Aotearoa.
"Certainly when we
submitted our request to them
providing significant new information and asking them to take the good hard look that hadn't been taken domestically before, we were surprised they said no.
"There's a wealth of new published peer-reviewed, well conducted research on glyphosate and there are new studies coming out all the time."
The bid for a risk assessment did not directly relate to a proposal
being considered by the Ministry for Primary Industries
, which could see the amount of glyphosate allowed on some crops increased exponentially , but Upperton says one assessment feeds into another, and ELI believed any reassessment of the MRL should wait until after the EPA had conducted a full risk assessment.
The government was proposing increasing the MRL from 0.1 milligrams per kilogram for wheat, barley and oat grains to 10 milligrams per kilogram, and 6 milligrams per kilogram for peas.
The MRL is partially based on a permitted daily exposure for food (PDE), which was set by the EPA's predecessor, the Environmental Risk Management Authority (ERMA), more than 20 years ago.
A public submission period which closed in mid-May saw the ministry receive more than 3100 submissions on the proposal. A spokesperson said it was too soon to have analysed the large of submissions, or to give a timeframe for that to happen.
ELI was not calling for an immediate ban on glyphosate, and any possible controls coming out of a reassessment would be up to the EPA and based on scientific conclusions, Upperton said.
New Zealand is one of the most permissive regulators of glyphosate globally, including allowing glyphosate use in settings where it's banned elsewhere - such as a pre-harvest desiccant on crops, a practice prohibited in the European Union, she said.
Several European countries have banned the domestic sale of glyphosate, restricting its use to regulated agricultural and commercial settings, while in the United States, the manufacturer of the leading glyphosate-based herbicide, Bayer, pulled RoundUp from the residential market itself in an effort to pre-empt further litigation, which has seen the company
pay billions of dollars to settle cases over potential links to cancer
, with another 67,000 cases pending.
Last year, the European Union approved glyphosate use for another decade after member states deadlocked for a second time on the issue, but a number of European countries, including France, the Netherlands, Belgium, Austria and Germany have partial bans in place. Multiple challenges to the decision are before the European Court of Justice.
"There's a whole spectrum of regulation out there. Some countries have banned it, some have restricted its use. New Zealand is at the really permissive end of the spectrum in terms of those with developed regulatory systems, we use a lot of it and everyone can use it, which is quite unusual."
The human health impacts of glyphosate are disputed. In 2015, the World Health Organisation's International Agency for Research on Cancer
found glyphosate was a probable carcinogen
and found strong evidence for genotoxicity, or the ability to damage DNA.
One of the grounds to trigger a reassessment is the existence of significant new information about the effects of the chemical, which was the route ELI took in it's request.
"There's a whole wealth of new, published, peer reviewed, well conducted research out there about glyphosate, and there's new studies coming out all the time, it's a really developing area."
Upperton felt there were two reasons for burgeoning body of evidence on the possible health impacts of glyphosate.
"Firstly, long term or chronic effects take a while to show up and into evidence. So if we've had glyphosate now for about 50 years in our populations, those effects are going to be more and more widely felt, but the other primary reason is that when these chemicals are introduced, the assessment of them is reliant on studies of their toxicity, for example, that are conducted by industry itself.
"Which makes sense - they should be looking into the safety of their own products - but they also have a very clear direct financial interest in these things being approved. It does mean - and it has been borne out in relation to several different substances, including glyphosate - their studies might focus on less real world effects and more in the laboratory where it doesn't really represent how it would be used In the real world.
"It's not to discount industry studies in their entirety, but in ELI's view, independent science is also important because it's a check on that kind of inherent conflict of interest that industry has."
The inability to sue companies in the same way as some other jursidictions - Bayer has spent more than US$11 billion settling close to 100,000 lawsuits in the United States, and is attempting to have legislation passed in some states to shield it from future litigation, while reportedly considering dropping the product altogether - meant New Zealanders had to rely even more on the EPA, she said.
"You can't sue someone for using glyphosate, or getting sick from glyphosate in New Zealand because of the bar on personal injury claims - that actually makes us more dependent on our regulator to step in and do these things because we can't take these actions in private capacities. We have to use the EPA and ask the EPA to do its job, which is really what this case is about."
The situation also highlighted a "wider issue for the EPA and for environmental regulation in Aoteaora generally" which was the under resourcing of the EPA, Upperton said.
"ELI is not saying the EPA needs to ban glyphosate tomorrow - we recognise that there's a lot of competing interest and resources at play here. What we want to do is is put it on the radar, put it on the list of things to be thought about, because there is a really big backlog of chemicals that need to be looked at by the EPA. I recognise they aren't resourced to be adequately doing their job at the moment."
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