EPA Administrator Disappointed with 9th Circuit Decision on Dicamba

On Thursday, June 25, 2020 the Ninth Circuit Court denied a motion by BASF to stay and recall their June 3 mandate vacating three dicamba registrations. This ruling included BASF’s Engenia herbicide. This ruling complicates the situation for dicamba registrants that now are in an untenable position with three of four over-the-top dicamba herbicides that are no longer federally registered for use.

For their part, the EPA, who is siding with the nation’s farming community, provided comments from U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler on the Ninth Circuit Vacatur of dicamba registrations expressing the agency’s disappointment “We are disappointed with the decision. The 2020 growing season is well underway, and this creates an undue burden for our first conservationists – farmers,” said Wheeler.

The EPA has reportedly been overwhelmed by correspondence from farmers around the country after the Court issued its opinion. The testimonies mainly concentrate on farmers’ frustration centered around the devastation; this decision is likely to wreak havoc on their crops and the threat to America’s food supply.

The 9th Circuit Court noted in the order that it would place a great hardship on America’s farmers. The ruling implicates millions of acres of crops and substantial investments already undertaken by the nation’s farmers. The EPA is currently looking at all avenues available that may mitigate the impact of the Court’s decision on farmers.

Farmers and commercial applicators may still apply the herbicides in their possession as of June 3, according to an EPA judicial cancellation order issued June 8. However, they will have to follow the former labels and any dicamba-specific state rules in place. This includes cutoff dates that may have already passed. For manufacturers such as BASF, the future of Bayer’s XtendiMax, BASF’s Engenia and Corteva’s FeXapan, face a future that remains uncertain.

The EPA’s open defiance of the 9th circuit order to cease use immediately of Dicamba based products is in response to the thousands of concerned communications the agency has received from farmers and applicators concerned about pre-purchased supplies of the Dicambia based products that total over 4 million gallons nationwide.

The EPA approved the pesticides for spraying on cotton and soybeans that have been genetically modified to tolerate Dicamba, however, drifting that causes damage to crops that were not targeted for spraying has been a significant concern relating to the safety of the herbicides.

Groups that include The National Family Farm Coalition, Center for Biological Diversity, Center for Food Safety and Pesticide Action Network made a successful challenge in the 2018 conditional registrations, stating in arguments that the EPA violated the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA).

BASF argued that the Court should recall the mandate for multiple reasons. The company claimed it wasn’t aware that it’s Engenia herbicide was part of the case before the June 3 decision, not allowing the company sufficient time to prepare a defense of its product to the Court.

Bayer further stated that when the judgment was issued to vacate the registrations, the Court also took the unusual step of issuing a mandate immediately afterward, backing up the vacation with the ability to apply the law to enforce its revocation. The appellate procedure typically requires seven days between a decision and a mandate, potentially giving the company a defense angle based on a lack of precedence.

The Ninth Circuit does have rules allowing a three-judge panel to issue a mandate on the same day. However, this must be applied under “exceptional circumstances.” Which BASF is using as the basis for their argument that this was not the case. However, the Court disagreed with BASF, issuing a single statement, with no accompanying opinion, that BASF’s motion was denied.