January 28, 2021

Court vacates dicamba registrations

SAN FRANCISCO — A federal appeals court overturned the U.S. Environmental Protection Agency’s approval of the use of dicamba.

A three-judge panel of the Ninth U.S. Circuit Court of Appeals ruled June 3 that the EPA failed to comply with a federal pesticide law requiring it to consider the risks of the chemical when it granted a two-year conditional approval in 2018.

The ruling was the result of a lawsuit filed by farming and conservation organizations the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity and Pesticide Action Network.

The federal lawsuit alleged that the agency violated the Federal Insecticide, Fungicide and Rodenticide Act by not having enough evidence to support its decision, including not having a single study looking at how dicamba moving off-target affects soybean yield.

The EPA originally approved dicamba in 2016 and then re-affirmed that decision in 2018 for two years through the 2020 growing season.

The judges heard oral arguments in April and agreed with plaintiffs, finding that the EPA underestimated and ignored many risks that dicamba imposed on other farmers and the natural world.

“We are aware of the practical effects of our decision. Among other things, we are aware of the adverse impact on growers who have already purchased (dicamba-tolerant) soybean and cotton seeds and dicamba products for this year’s growing season, relying on the availability of the herbicides for post-emergent use,” Judge William Fletcher wrote on behalf of the three-judge panel.

“We acknowledge the difficulties these growers may have in finding effective and legal herbicides to protect their DT crops if we grant vacatur. They have been placed in this situation through no fault of their own. However, the absence of substantial evidence to support the EPA’s decision compels us to vacate the registrations.”

Risks Understated

The count ruled the EPA understated three risks, including the amount of DT seed acreage and the amount of dicamba herbicide that had been sprayed on post-emergent crops.

“Further, the EPA purported to be agnostic as to whether formal complaints of dicamba damage under-reported or over-reported the actual damage, when record evidence clearly showed that dicamba damage was substantially under-reported,” the judge wrote.

“Finally, the EPA refused to estimate the amount of dicamba damage, characterizing such damage as ‘potential’ and ‘alleged,’ when record evidence showed that dicamba had caused substantial and undisputed damage.”

Fletcher also wrote that the EPA “did not acknowledge the high likelihood that restrictions on over-the-top dicamba application imposed by the 2018 label would not be followed.

“Further, the EPA entirely failed to acknowledge the substantial risk that the registrations would have anticompetitive economic effects in the soybean and cotton industries.

“Finally, the EPA entirely failed to acknowledge the risk that (over-the-top) dicamba use would tear the social fabric of farming communities.”

The ruling vacates approval of dicamba-based herbicides made by BASF, Corteva and Bayer.

Disagreements

“We strongly disagree with the ruling and are assessing our options. If the ruling stands, we will work quickly to minimize any impact on our customers this season. Our top priority is making sure our customers have the support they need to have a successful season,” Bayer stated.

“The EPA conducted an extensive review and considered all relevant science prior to issuing the current registration for XtendiMax. In October 2018, the EPA extended the registration of XtendiMax and stated that ‘this action was informed by input from and extensive collaboration between EPA, state regulators, growers, academic researchers, pesticide manufacturers and other stakeholders. EPA understands that dicamba is a valuable pest control tool for America’s growers.’”

U.S. Secretary of Agriculture Sonny Perdue said, “Producers need all the tools in their toolbox to produce the world’s food, fuel and fiber, and USDA re-affirms its support for EPA’s science-based process for assessing and managing ecological risks, balanced against the agricultural and societal benefits of crop protection tools.

“USDA stands ready to assist its federal partners in meeting that goal. Farmers across America have spent hard earned money on previously allowed crop protection tools. I encourage the EPA to use any available flexibilities to allow the continued use of already purchased dicamba products, which are a critical tool for American farmers to combat weeds resistant to many other herbicides, in fields that are already planted. Unfortunately, the 9th Circuit has chosen to eliminate one of those tools.”

“Soybean farmers have been met with yet another hardship with the sudden announcement regarding the popular product, dicamba, which impacts all farmers using Engenia, FleXapan and XtendiMax herbicides. This decision could not come at a more detrimental time for soybean farmers who have nearly completed putting the 2020 soybean crop in the ground,” the Illinois Soybean Growers said.

“Illinois farmers have always been advocates for the safe use of new technology. They have proven to be conscientious users of the product who have taken precautions and completed the required education needed to use dicamba. We stand with our fellow soybean states in advocating for our soybean farmers during this time and getting information out in an appropriate fashion.

“We will learn more in the coming days and ISG will continue to provide updates to Illinois farmers on the issue. Illinois state ag groups are working closely and collaboratively at this time to provide clarity on the dicamba ruling.”