What is happening? Can the Courts Protect us if Principles enshrined in Legislation are Set Aside?
A NZ Judge recently took the NZ EPA at its word: 'no grounds for risk assessment'. So it's OK not to do risk assessment. The judge's decision is being appealed. Thank you ELI.
Published 26th Nov, PSGR interview with RCR on 29th Nov discussing this issue.
Timeline:
Glyphosate has not been risk assessed in NZ since it was grandfathered in, in 1972.
(2015) IARC Monograph determined that glyphosate probably causes cancer.
(2016) PSGR join prominent public health scientists in supporting the paper Why did the NZ EPA ignore the World Authority on Cancer? (Green Party, 2016).
(2018) Lost in the Weeds, Douwes et al. (NZMJ) paper released. Professors who have far more expertise than NZEPA committees who requested risk assessment were ignored.
(2018). Associate Minister for the Environment asked the EPA to consider reassessing glyphosate. The EPA declined.
(2022) NZEPA drafted formal risk assessment out of scope via the production of a scientifically questionable Methodology document that prioritises industry data.
As of 2021 the NZEPA had never met to decide whether there was new information on glyphosate’s risk that would suggest there was grounds for reassessment (HSNO Act 1996 S62 & 63). Yes, people have asked.
(2023-2024) The Environmental Law Initiative (ELI) apply to the NZEPA to determine if there was grounds for reassessment.
(July 2024) NZEPA reject the application (APP204718).
(2024-2025) ELI file for judicial review of the EPA decision. High Court Judge Grau determined that ELI did not establish ‘a reviewable error’.
(2025) The Ministry for Primary Industries independently determine that glyphosate should not be sprayed on cereals used for human consumption.
(2025) ELI lodge an appeal against the High Court ruling in the Court of Appeal.
(2025) Major industry funded paper claiming the safety of glyphosate, retracted.
New Zealand is unique for a reasonably high income country that uses large volumes of glyphosate and which relies heavily on agricultural exports - our Environmental Protection Authority (NZEPA) have never risk assessed glyphosate or it’s conventional adjuvant additives (in glyphosate-based herbicides) - ever.
PSGR have been calling attention to the risk presented by glyphosate based herbicides for twenty-five years. After the International Agency for Research on Cancer (IARC) determined that glyphosate, and glyphosate-based herbicides definitely cause cancer in laboratory animals, and probably cause cancer in humans, PSGR swiftly released a report: Glyphosate: A probable carcinogen (2015). PSGR also supported the major Green Party paper Why did the NZ EPA ignore the World Authority on Cancer? (2016) which was supported by Jane Goodall, and prominent New Zealand public health professors. The report revealed the ‘game’ (brief outline here) that has been played for years - where industry uses old data which then becomes locked in to retain existing regulations and guidelines (even when updates occur).
[Ed. December 2025] The Why did the NZ EPA ignore the World Authority on Cancer? white paper highlighted the consistent use by global regulatory agencies of the Monsanto funded Williams et al. (2000) paper Safety evaluation and risk assessment of the herbicide Roundup and its active ingredient, glyphosate, for humans and the Monsanto funded studies cited in this paper, to support regulatory decision-making at a time when the primary decision involved the change from only spraying the herbicide on soil, to spraying glyphosate on human food crops (Monsanto’s Roundup Ready, herbicide tolerant crops), and the evidence that Monsanto had a troublingly close relationship with the US EPA. Studies used by that paper as evidence of ‘safety’ were also by Monsanto, (e.g. Kier & Kirkland) and criticised by the Douwes et al (2018) paper.
The Williams et al (2000) paper was retracted in early December 2025 - two decades too late. The retraction followed the publication of a paper by New Zealand-based scientist Dr Sasha (Alexander) Kaurov, PhD Candidate in Science and Society, Victoria University of Wellington and science historian, Naomi Oreskes.
Kaurov AA, Oreskes N. The afterlife of a ghost-written paper: How corporate authorship shaped two decades of glyphosate safety discourse. Environmental Science & Policy, 171:104160. DOI: 10.1016/j.envsci.2025.104160
The NZEPA ignored us all.
This Substack will express frustration. The NZEPA has never risk assessed glyphosate - and then - when the world authority on cancer determined glyphosate’s risk, as the Green Party paper outlined, the NZEPA commissioned a report by a single toxicologist which exclusively cited industry funded papers, many dating back decades, many which did not conform to risk assessment protocol - to rebut the major global finding by the Working Group of 17 experts from 11 countries.
A cohort of New Zealand professors then published a paper in the NZMJ (2018) condemning the NZEPA’s actions. They drew attention to the lack of risk assessment, the flaws in the NZEPA and EFSA papers. They demanded that the paper was retracted and that a risk assessment be undertaken.
They were ignored. NZEPA failed to engage with the prominent epidemiologists and public health physicians.
Douwes, J., ‘t Mannetje, A., McLean, D., Pearce, N., Woodward, A., & Potter, J. (2018). Carcinogenicity of glyphosate: why is New Zealand’s EPA lost in the weeds? New Zealand Medical Journal, 82-89.
But it gets worse/more extraordinary.
One of the authors of the paper was also one of the authors of the IARC monograph.
The NZEPA committee didn’t even meet to decide if there was new information.
As PSGR wrote: as of 2021, the sub-committee who would meet to committee tasked with deciding on whether there was new information on glyphosate (such as the IARC decision or the findings from US court cases) have never met to assess whether there was new information. It is noteworthy that the public health (including on cancer and epidemiology) expertise of the scientists who authored the NZEPA paper far outweigh the scientific knowledge of members of the sub-committee, in their expertise relating to the relationship of environmental chemicals with cancer, oxidative stress and toxicity.
But New Zealand adopts Best Practice?
No New Zealand doesn’t. Best practice in Europe results in severe restrictions of glyphosate-based herbicides in agriculture and for non-agricultural applications.
Europe does not permit roadside, township and spraying on water surfaces.
New Zealand permits widespread use and neither government agencies, nor scientists test in the regions to assess the persistence when it is sprayed. (Discussion here).
Current Global Litigation Status (2025)
As many people know now, the 2015 finding of the IARC prompted a cascading series of global court cases that continue to this day. Ten years later - settlement agreements total $11 billion. These court cases were important, not only because they enabled people who were injured by their use of a highly toxic chemical that had been marketed for years as reasonably non-toxic to sue that company, the discovery process in the court cases revealed how Monsanto had misled regulators and had not discloses many of the risks that were known by company scientists.
In 2025 - (republished from company Wisner Baum):
Monsanto/Bayer has faced over 192,000 Roundup lawsuits since the start of litigation. As of 2025, 131,000 cases have either been settled or deemed ineligible.
Wisner Baum helped negotiate Roundup settlement agreements worth approximately $11 billion, resolving roughly 60% of cases.
Roundup cancer attorneys have obtained roughly $6 billion in combined jury verdicts in 2024 and 2025.
Bayer estimates that there are over 61,000 pending Roundup lawsuits.
Current Litigation Status in New Zealand (2025).
A NZ case study reveals how resistant the NZEPA is to conducting risk assessment and sheds light on the problems the courts have in weighing the gravity of historic negligence in government agencies, and the impact of that negligence for the public, the environment, and the agriculture sector.
The EPA’s Call for Information on glyphosate (2021) which resulted in organisations including ELI and PSGR submitting response, resulted in the EPA producing a Summary Report (2022) that ‘EPA’s position on glyphosate is that it is safe to use provided the specified controls and precautions are followed’ despite broad concerns expressed by submitters. The EPA consequently did not call for reassessment of glyphosate, this prompted the Environmental Law Initiative’s (ELI) application to the NZEPA to determine if there was grounds for reassessment (2023).
NZEPA rejected the application (2024). The NZEPA committee, until 2023, had never met to consider the ‘new information’ which included the 2015 IARC finding, and enormous reams of data that was uncovered by court cases. However as PSGR has found, the current methodology processes used by the NZEPA essentially draft out an obligation to consider information supplied by the public,
(2023) The Environmental Law Initiative (ELI) apply to the NZEPA to determine if there was grounds for reassessment. NZEPA reject the application.
(2024-2025) ELI file for judicial review of the EPA decision. High Court Judge Grau determined that ELI did not establish ‘a reviewable error’.
(2025) The Ministry for Primary Industries independently determine that glyphosate should not be sprayed on cereals used for human consumption.
(2025) ELI lodge an appeal against the High Court ruling in the Court of Appeal
Extracts from Judge Grau’s decision (CIV-2024-485-612 [2025] NZHC 3106):
[4] ELI says the EPA’s decision has a number of flaws. ELI says the EPA has erred in applying the wrong legal test, failing to take into account the purpose and principles of HSNO, and failing to request further information from ELI. ELI also claims the EPA erred in failing to determine whether there were grounds for a reassessment of GCSs (in addition to glyphosate), and in taking an approach that was inconsistent with the approach it has taken in other requests for reassessment.
[6] The EPA accepts that, if it made an error, the Court should quash the decision and order a reconsideration. However, the EPA says its decision was correct and ELI’s judicial review application is based on a misunderstanding of the nature of the EPA’s power to decide if there are grounds to reassess a hazardous substance under s 62.
[7] This judicial review is not about whether glyphosate and GCSs remain safe to continue to be used in New Zealand or pose a risk to human health and/or the environment.
Summary of result
[8] I do not consider that ELI has established a reviewable error in the EPA’s decision. The EPA did not take into account considerations that went beyond the test set out in s 62; rather it had regard to relevant matters in what is a highly discretionary exercise that serves a gatekeeping function. Those matters included the reliability of the studies and literature reviews provided by ELI—assessed through reference to reliability standards known as “Klimisch scores”—as well as a comparative weighting of ELI’s material against other recent reviews by international regulators.
[9] Nor did the EPA fail to take into account the purposes and principles set out in pt 2 of HSNO, given they were referred to in the EPA’s decision, many were not engaged, and a comprehensive consideration was not required.
[37] The EPA’s decision-making committee (the Committee) considered the information provided by ELI, as well as the evaluation of the request by the EPA staff.
[38] The Committee observed that Europe, the United States, Australia, Canada and the United Kingdom were in agreement that the current hazard classifications remain appropriate.
[41] The Committee also noted the EPA’s staff position that literature reviews would not typically be used to justify changes to hazard classifications or controls of an approval. Given it was unlikely that the literature reviews would justify a change to an approval, the Committee agreed that the literature reviews presented by the applicant could not be considered significant under s 62(2)(a) of HSNO.36
[42] The Committee was of the view that, when the new international information did not identify any new significant risks, the current prescribed and additional controls applied to glyphosate and GCSs in New Zealand remained sufficient to manage any risks to human health and the environment.
[43] As a result, the Committee concluded the information provided by ELI could not be considered significant under s 62(2)(a) of HSNO, and therefore it did not consider there were grounds for a reassessment on the basis of significant new information in relation to the effects of the substance.
Grounds of review
[44] ELI seeks judicial review of the EPA’s decision on the following grounds:
(a) the EPA applied the wrong legal test—namely a reliability assessment and “weight of evidence approach”—in determining the significance of the information provided
(b) the EPA failed to take into account the purpose and principles of HSNO, when, in determining ELI’s request, it did not act in accordance with the purpose in s 4 of HSNO, recognise and provide for the principles in s 5, take into account the matters in s 6, take a precautionary approach in line with s 7, and take into account the principles of Te Tiriti o Waitangi outlined in s 8;
(c-) When the EPA had concerns about the reliability of the information ELI provided, its failure to request further information from ELI was a procedural error;
(d) the EPA failed to make a determination on whether grounds existed for the reassessment of GCSs, as it only found no grounds existed for the reassessment of glyphosate; and
(e) the EPA erred by applying the tests for “significant information” and “new information” inconsistently with the way it had determined previous requests.
[70] Mr Whittington submits it has long been recognised that if a decision-maker approaches the specific decision-making task in accordance with the statute, a separate reference to principles and purposes is not required.
Result [100]
None of the grounds advanced by ELI have persuaded me that the EPA’s decision was unlawful. Accordingly, the application must be dismissed.
PSGR’s rapid response to J Grau’s judgement as non-legal laymen.
please contact PSGR if we are legally incorrect and we will make relevant corrections.
PSGR emphasise that we have not discussed the below response with ELI and that the only information that has been accessed is on ELI’s public page.
Ground 1. ELI emphasised that assessing the weight of evidence was appropriate at the reassessment stage and PSGR agree with this position. The NZEPA has not addressed the risk and hazard of glyphosate, hazard relating to dosage and exposures in New Zealand. The NZEPA cannot claim that their controls are safe for New Zealanders as the science on risk and the exposure risk has not been addressed. There seemed to be no capacity in the decision to address whether the EPA’s weight of evidence claim was misleading as different regulators have adopted vastly different guidelines and controls following their risk assessment processes to arrive at different usage restrictions.
Ground 2. PSGR are confused that the statute would over-ride principles, when the principles are embedded in the statute. The Judge appeared to downplay the HSNO Act’s purpose and principles (and exclusively engage with the principles of Te Tiriti) and not engage critically in this discussion. The judge weighted a decision from King Salmon, to argue that the principles were effectively meaningless, and subsequently considered ‘the relevant purposes and principles do need to be separately referred to.’ [72]
PSGR are concerned that this alone sets a troubling precedent.
The Judge appears to believe that the EPA’s Assessment Report (that followed ELI’s initial application) is authoritative. The Committee appeared to extensively state that global regulatory positions have not changed, and discuss the EU’s position - but the EPA Report does not appear to highlight the EU’s much stronger controls. The Committee Report did not disclose the different usage patterns when discussing changes to the risks of glyphosate, and the much safer European controls.
It is not apparent whether Judge Grau was able to discern that different regulatory guidelines have been adopted by key regulators, reflecting different stances on risk following different risk assessment processes [38]. The judge’s decision does not identify whether the NZ EPA committee considered or disclosed that current ‘hazard classifications’ and hence restrictions on use differ widely between Europe, the US and Commonwealth nations. Perhap’s ELI’s lawyer did not raise this issue as a relevant consideration.
The EPA claim in the Report (p.13):
Studies supplied by the applicant post November 2021 are mostly literature reviews which cannot be used to justify a change to hazard classifications as they are not the primary source of the data. One study was produced after November 2021, however the study did not use OECD test guidelines or GLP resulting in a lower Klimisch score.
EPA’s claim that ‘the information provided by ELI could not be considered significant’ arguably does not stand any rigorous test if a more nuanced view of the scientific evidence - in the public interest - is adopted. Remember - the NZEPA have never convened to consider the IARC finding, new evidence in the scientific literature, nor highlight key evidence cited by judges in global court cases.
‘Staff literature reviews’ of the science on glyphosate [41] have never been disclosed and may never have occurred. It is uncertain whether EPA staff have ever conducted a formal review of the scientific literature on the risk of glyphosate.
Did Judge Grau understand that the EPA comment was potentially misleading?
In addition, PSGR wonders whether the judge may have been unable to verify whether the EPA’s claims that the information that was supplied by ELI (the literature reviews) could not be used to change a hazard classification and the failure to use OECD test guidelines - were potentially misleading and therefore likely incorrect. Firstly, information in literature reviews SHOULD be able to be recognised as relevant information in a risk assessment process (which is what EFSA does do). Secondly, many studies relied on regulators today fall outside of (e.g. PECD) guideline recommendations. E.g. studies used to establish the WHO Drinking Guidelines (see discussion pages 5-6) are not guideline.
PSGR are confused that a NZ judge appeared to be unable to recognise that to assure the safety of a commonly used herbicide and ‘protect the environment, and the health and safety of people and communities’, the regulator must carry out full risk assessment to understand both new information and usage patterns in New Zealand.
Glyphosate is not some herbicide with a minor usage pattern. It is used pervasively across New Zealand. How could this major consideration not be recognised?
The judge seems to then downplay the EPA’s acknowledge that gaps in information exist to claim that the EPA have addressed the issue. But the judge seemed to over-ride this by referring back to the EPA staff’s assurance that this was not significant new information. But the full context that is assured by both risk and hazard assessment has never been addressed in New Zealand, and new information in the past decade has never been publicly analysed.
The judge appears content that ground 4, failure to make a determination relating to the toxicity of glyphosate based compounds (the retail substance emitted into the environment) was sufficiently addressed in the Committee Report. Although many formulation-based studies were cited, that Report did not evaluate the evidence for formulations and discuss this information, nor consider the toxicity of prominent formulations used in New Zealand. A list of studies is not a proxy for assessment.
Ground 5: inconsistent application of legal tests created a problem for the judge, as risk assessment is not part of NZEPA, and decisions which consider whether to approve or not approve do not follow broader risk assessment protocols. The Klimisch scores cited by the NZEPA were developed by industry and are globally recognised to favour industry actors, however it is realised that the judge would struggle to recognise this claim by ELI’s KC as authoritative. The judge cited a recent chlorpyrifos decision, yet as PSGR have shown in our Chlorpyrifos report (2024), that assessment was inadequate because again, a formal, methodological and trustworthy approach to risk assessment was not undertaken.
As any student of constitutional and administrative law might recognise, principles serve an important purpose, they support decision-making when facts are difficult to discern, and support regulatory agencies in decision-making when many political actors are involved. The judge could also identify the problem of inconsistent use of ‘guideline’ (reliability) studies (which then call into contradiction the exclusion of studies published in the scientific literature).
If an agency does not engage in risk assessment and dismisses principles that support regulatory deliberations, that agency cannot assure the safety of people, communities and the environment.
Lack of risk assessment produces a knowledge vacuum and erodes trust in agencies. As no risk assessment document is then published - there is no public forum for engagement, to consider the evidence relied on by the regulator and identify the accuracy of the EPA’s claims and to support trust in the credibility of that regulators decisions. Transparency is of the essence, as the European Court of Justice confirmed.
It is strange that this over-riding obligation - the obligation for regulations and regulatory agencies to be maximally transparent, to follow procedures that promote and sustain long-term trust in government - seemed never to be a point of consideration by Judge Grau.
The EPA’s 2025 Annual Report Board Chair’s message stated:
‘The EPA recognises the importance of maintaining public trust in our regulatory processes. Transparent, evidence-based decision making is key to stakeholder confidence. Where the EPA grants approvals or implements regulations, communities can trust the safeguards designed to protect both public health and environmental sustainability.’
Did the Ministry for Primary Industries Just Contradict the NZEPA?
In the vacuum of absent risk assessment, PSGR speculate that the Ministry for Primary Industries (MPI) had to resort to a large consultation to compensate for the dearth information on glyphosate’s risk held with New Zealand agencies.
MPI’s finding essentially contradicted the NZEPA legacy position that glyphosate is safe, by recognising that desiccation of cereals was no longer general practice and not accepted by best practice trade partners. Their press release stated:
‘the existing glyphosate MRL of 0.1mg/kg is appropriate and can be set as the limit moving forward.’
“Although we are confident the proposed limits would not have presented any health risks to consumers, after considering more than 3100 submissions and meeting with abroad range of submitters and stakeholders, we found compelling evidence that the way glyphosate is used in New Zealand has changed over the past five or six years.
“Growers and millers have increasingly entered into contractual arrangements that require no, or extremely low, glyphosate residues in grains used for food, effectively prohibiting pre-harvest use of glyphosate.
As PSGR have noted:
It’s important not to see glyphosate as an anomaly, but rather, an example of governance and regulatory systems that neglect to respond scientific norms that are generally accepted in industry research, such as identifying hormone level risks in drug development; or the exciting potential of omics and biomarker technologies). By deferring to industry sponsors (e.g. New Zealand and Europe) to supply the (confidential) science that that regulators consider as ‘authoritative’, and prioritise in risk assessment - regulators remain ‘in the dark’ about the wider scientific evidence.
In New Zealand, precaution sways in favour of retaining an unsafe pesticide on the market. Regulators can depend on modelling and industry data but are not required to review the scientific literature, nor require local scientific monitoring and research to feedback into the regulatory arena. While the precautionary principle is included in our legislation, the legislation is drafted in such a way that the principle is not prioritised. New Zealand’s weak regulations result in dozens of pesticides in our soil, water and bodies, that are banned in Europe (see discussion part 5 of this paper).
In a 2019 submission to the NZEPA, PSGR discussed the importance that, if the NZEPA was not conducting risk assessment, it could use a trusted regulator, but adopt best global practice that is the most protective for farmers, growers and the public. This has not happened, and not clear that the NZEPA have any intention to adopt best practice.
The NZEPA then published the scientifically questionable Risk Assessment Methodology for Hazardous Substances (2021-2022) that contains opaque and muddled ‘cost-benefit’ processes, skews NZEPA deliberation to favour industry claims, ignores the formulation synergies that are expressly designed into commercial formulations, fails to require up-to-date evidence of persistence in soil, contains outdated assumptions and modelling, and drafts out any requirement to consider the published scientific literature or public submissions.
However, New Zealand scientists cannot secure funding to research the short and long term risks of pesticides in New Zealand. As a result there is no expertise outside the NZEPA to look closely at the NZEPA’s methodology document and contrast it to real world knowledge on glyphosate’s risk. This sort of research is out of scope.
PSGR discussed this institutional problem in our report on the NZ science system When powerful agencies hijack democratic systems. Part II: The case of science system reform (2025).:
Bids to understand risks to environmental and human health frequently fall outside the scopes of MBIE funding schemes. Longer term research proposals tend to slide down funding ladders if they do not promise an innovation outcome (patents are associated with economic growth), and if there are no large peer groups which will view novel forms of research. For example, novel basic research into hazardous substances and new organisms and human health effects which involve novel screening technologies, interdisciplinary working groups, would fall outside of ‘excellence’ standards, and the impact would be uncertain and difficult to predict.
It’s not the individual scientists - it’s the legal and regulatory environment, the culture of the agency, and the absence of independent expertise that effectively creates a knowledge vacuum - institutional architecture that permit the EPA to craft it’s own guidelines, which also prohibits research that might criticise them.
The question is, if we return to the 2025 message from the EPA Board Chair - are the public stakeholders, or do the EPA only really consider that industry are the real stakeholders?
REFERENCES
IARC Monograph IARC, Volume 112 (2015) Some Organophosphate Insecticides and Herbicides: Diazinon, Glyphosate, Malathion, Parathion, and Tetrachlorvinphos. http://monographs.iarc.fr/ENG/Monographs/vol112/mono112-10.pdf
Kaurov AA, Oreskes N. The afterlife of a ghost-written paper: How corporate authorship shaped two decades of glyphosate safety discourse. Environmental Science & Policy, 171:104160. DOI: 10.1016/j.envsci.2025.104160
Public Health Concern: Why did the NZ EPA ignore the world authority on cancer? Bruning J., Browning S., Green Party of Aotearoa New Zealand. 2017 (Please note that J Bruning was not a PSGR member at the time of co-authoring this report).
Douwes, J., ‘t Mannetje, A., McLean, D., Pearce, N., Woodward, A., & Potter, J. (2018). Carcinogenicity of glyphosate: why is New Zealand’s EPA lost in the weeds? New Zealand Medical Journal, 82-89.
NZEPA (July 2024). EPA Assessment Report. Grounds for reassessment of glyphosate and glyphosate-containing substances APP204718.
Thank you for this informative article. Sadly, I'm left wondering where do we turn to if even the judicial system seems to be hijacked. Not just on this issue but many of the ones we are currently facing.