The Evolving Case Against Dicamba

Peanuts069In 2019, a petition was filed in the U.S. Court of Appeals for the Ninth Circuit against the EPA for its decision in 2018 to extend the registration of low-volatility dicamba products, including XtendiMax. The petition was filed by the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America. The petitioners requested the court to vacate the current U.S. registrations of certain low-volatility dicamba products, including XtendiMax. The petitioners claim the EPA’s 2018 registration decision was based on insufficient evidence and therefore violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). In April 2020, the court heard oral arguments on the petition. The EPA defended its science-based registration decision.

On June 3rd, the 9th U.S. Circuit Court of Appeals vacated the registrations of three dicamba herbicides—Bayer’s Xtendimax, BASF’s Engenia and Corteva’s FeXapan. The court found that EPA violated FIFRA in its conditional approvals by, among other things, not adequately estimating dicamba damage. The court’s decision does not address Tavium, Syngenta’s dicamba herbicide.

In response to the court’s decision, AFBF sent a letter to EPA Administrator Wheeler. The letter notes that many farmers have already made planting decisions to use dicamba-tolerant crop systems and planned to use dicamba products in the very near future. The letter also asks EPA to provide clarity to farmers and issue an existing stock order to ensure this product remains available to farmers throughout this growing season.

On June 8th, EPA issued an order providing clarity on the three canceled Dicamba registrations. EPA’s order addresses sale, distribution, and use of existing stocks of the three affected dicamba products—XtendiMax with vapor grip technology, Engenia, and FeXapan.

In short, the order says:

  • Distribution or sale by any person is generally prohibited except for ensuring proper disposal or return to the registrant.
  • Growers and commercial applicators may use existing stocks that were in their possession on June 3rd, 2020, the effective date of the court decision. Such use must be consistent with the product’s previously-approved label, and may not continue after July 31st, 2020.

However, days after EPA issued the existing stock order, the Center for Food Safety and the Center for Biological Diversity filed an emergency motion in the Ninth Circuit Court requesting the enforcement of its June 3rd decision to vacate the registration for three dicamba products and found EPA’s cancellation order unlawful, and hold EPA in contempt of court. On June 19th, a panel of Ninth Circuit Court judges denied the emergency motion to halt dicamba use and hold EPA in contempt Friday.

The decision was an important win for the EPA, which obeyed the Ninth Circuit’s June 3rd order to vacate three dicamba registrations and interpreted the order as allowing farmers and commercial applicators to continue applying “existing stocks” of XtendiMax, Engenia, and FeXapan through July 31st.

That means EPA’s existing stocks provision still stands, and growers can continue using any stocks of those herbicides under their ownership as of June 3rd, as long as they follow the existing labels and any existing state regulations on dicamba use.

The court also directed the Petitioners to respond to BASF’s motion to recall the June 3rd Order vacating the dicamba registrations, stay the mandate, and they argue that the June 3rd Order should be rewritten:

“[T]here are … serious legal and procedural problems with the court’s decision, which will soon be the subject of appropriate petitions for rehearing. Thus, the court should recall the mandate… to protect BASF’s right to be heard before its Engenia registration is terminated. … [T]his would allow the court to hear from BASF and to consider rehearing petitions before the dramatic and irreversible impacts of the panel’s decision are fully imposed on BASF and the nation.”

It is good to see some positive news beginning to develop around this issue, but, without question, this decision and its unfortunate timing in the middle of the growing season will have a negative financial impact on farmers who are already stressed, and an impact on crop yields and food production. Despite the court’s decision, the clarity provided by the EPA and the Virginia Department of Agriculture and Consumer Services (VDACS) has offered some certainty for farmers who were left wondering how they would protect their crops, utilize existing Dicamba, and stock America’s pantries

VDACS is aware of the court’s decision and is complying with further guidance from EPA regarding the federal registration status of these products. The status of the dicamba registration could change quickly and with little advance notice, so growers, pesticide applicators, and distributors and retailers are encouraged to check the VDACS Office of Pesticide Services webpage for updates.

Frequently Asked Questions on Dicamba Cancelation

Q: If a farmer has purchased Dicamba from a retailer but not yet taken possession by 6/3/20 can they now pick-up the product?

Yes. If the Dicamba purchase was completed on or before June 3rd, 2020 they can pick up the product. VDACS would expect sales records to reflect the date of the purchase.

Q: Can a farmer now contract a provider to apply Dicamba that retailer currently has in their possession? For example, Southern States can be a retailer as well as provide commercial/contract applicator services. If a farmer hires them to apply Dicamba that product continues to be in possession of the commercial applicator, and the farmer is paying for the service, not purchasing the product.

Yes, a farmer can contract with a licensed pesticide business for the commercial application of Dicamba. As indicated, they are paying for the service, not purchasing the product.

Q: Can a farmer currently in possession of Dicamba distribute that product to another farmer or farm entity for their personal use?

No. The cancellation prohibits the distribution of the product from dealers, retailers, or any other persons except for the purposes of proper disposal or to facilitate return to the registrant. A farmer would be considered “any other person.” § 3.2-3930 (A) of the Virginia Pesticide Control Act would, however, allows Farmer A (in possession of the Dicamba) to apply the Dicamba for Farmer B.

  1. Does the court’s ruling impact the 2021 season and beyond?
    The court’s ruling pertains specifically to the EPA’s 2018 registration decision, which was set to expire in December 2020. The EPA is currently reviewing submissions (from chemical manufacturers) in support of new registration for various Dicamba products for the 2021 season and beyond.
  2. Why was Syngenta’s Tavium not impacted by the court’s ruling?
    The court’s ruling pertains specifically to the EPA’s 2018 registration decisionfor certain low-volatility dicamba products. Tavium, a Dicamba-based product, was not part of the EPA’s 2018 registration decision.

Read the Full 9th Circuit Opinion

Click Here for the EPA’s key order on Dicamba

Click Here for the full EPA cancelation order

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