By Brianna Schroeder, Janzen Agricultural Law LLC
On June 3, 2020, the Ninth Circuit Court of Appeals vacated the Environmental Protection Agency (EPA) registration of three dicamba herbicides: XtendiMax (Bayer), Engenia (BASF) and FeXapan (Corteva). Nat’l Family Farm Coalition et al. v. U.S. EPA, Case No. No. 19-70115 (9th Cir. June 3, 2020). After five long days of uncertainty, the EPA issued a cancellation order for the chemicals late on June 8, 2020. The agency will, however, permit growers and commercial applicators to use existing stocks of the three herbicides.
Dicamba is extremely toxic to broadleaf weeds. Farmers use it to control weeds in soybean or cotton fields after planting seeds engineered to be dicamba-resistant. Unfortunately, dicamba is also toxic to trees, bushes, and other plants. It can damage or kill fruit trees, tomato bushes, grapes, beans, peas, potatoes, flowers, and ornamental plants. Dicamba can drift during or after spraying if the wind is blowing too hard, the equipment is moving too fast, or when temperature inversions occur. Dicamba also can volatize after it comes to a rest on plants or the ground. Dicamba’s effectiveness has made it a valuable tool to soybean and cotton farmers, but it is a risky product to other farmers and neighbors for the same reasons.
In its order, the Ninth Circuit chastised the EPA. The Court held the EPA violated the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) by understating or failing to acknowledge risks of dicamba’s adverse effects on the environment. The Court ruled the EPA understated the amount of dicamba resistant acreage that had been planted in 2018, and therefore the amount of dicamba sprayed on crops. The Ninth Circuit explained that the EPA also ignored data showing the complaints of dicamba damage were under-reported. Finally, the EPA refused to estimate the amount of dicamba damage done. The Court held the EPA also failed to even acknowledge three other risks. First, there was a high likelihood of label restrictions would not be followed—the dicamba labels in 2016 and 2017 were difficult if not impossible to follow, and 2018 amendments were even more onerous. Second, the Court held the EPA did not acknowledge the substantial risk that the dicamba herbicide registrations would have anti-competitive economic effects in the soybean and cotton industries. Finally, the Court ruled the EPA did not consider the risk that dicamba use would tear the social fabric of farming communities apart. For these reasons, the Ninth Circuit Court of Appeals vacated the EPA’s October 2018 registration decision for XtendiMax, Engenia, and FeXapan. The EPA did not immediately take any action, so state regulatory agencies released wildly different statements on whether dicamba would be allowed in that state.
The Indiana Office of State Chemist announced dicamba could still be used in Indiana under the Indiana herbicide registration. Illinois, on the other hand, stated that no dicamba could be used or distributed under the Court’s order. Most of this confusion should end now that the EPA cancelled the registrations and ordered that existing stocks of dicamba in the possession of commercial applicators or farmers may be used until July 31, 2020 (subject to further state regulations and cut off dates).
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