Will Farmers Be Able to Spray Dicamba Next Week?
With EPA’s most recent cancellation order for Engenia, FeXapan and XtendiMax, farmers and commercial applicators were assured they could use existing stocks they had in their possession by June 3. However, plaintiffs in the case that lead to the products’ vacatur say this is wrong and that the courts should grant an emergency motion to enforce the vacatur and hold EPA in contempt for their actions.
“This seems like it’s illegal because EPA is defying the court order and the court had every intention when they passed that rule that, that was it, no more use of this chemical because it wasn’t approved,” says Jim Goodman, with the National Family Farm Coalition, plaintiff in the lawsuit that lead to dicamba’s vacatur. “EPA seems to feel that they have more authority than state and local governments, even the court system.”
To summarize, the EPA issued a final cancellation order on the three dicamba formulations. In that order it provided the following guidance:
- Distribution or sale is prohibited unless it’s for product disposal or returns to the registrant (BASF, Corteva or Bayer).
- Farmers and commercial applicators can use their existing stocks that were in their possession as of June 3, 2020, when the Court mandate took effect. Applications must be in line with previously-approved labels include temperature restrictions, windspeed restrictions, application date cutoffs and any other detail found in the label.
“At the height of the growing season, the Court’s decision has threatened the livelihood of our nation’s farmers and the global food supply,” said EPA Administrator Andrew Wheeler. “Today’s cancellation and existing stocks order is consistent with EPA’s standard practice following registration invalidation, and is designed to advance compliance, ensure regulatory certainty, and to prevent the misuse of existing stocks.”
The plaintiffs, including the Center for Food Safety and the Center for Biological Diversity, filed an emergency order on Thursday, June 11, 2020, requesting relief (a decision) by the earliest possible date.
If the court rules in favor of the plaintiffs, all dicamba applications will be illegal and EPA Administrator Andrew Wheeler and the EPA itself will be found in contempt. Depending on how quickly this decision is announced, farmers could potentially lose access to even existing dicamba stocks as early as today.
“USDA supports the actions taken by the EPA to respond responsibly to the decision of the Ninth Circuit regarding dicamba," said USDA Secretary Sonny Perdue in a recent statement regarding this new motion. "At a time when the security of the food supply chain is paramount, the Center for Biological Diversity and its allies seek to cripple American farmers and further limit their ability to feed, fuel, and clothe this nation and the world. The Ninth Circuit should not allow plaintiffs’ hostility against the American farmer to cloud the fact that the EPA’s actions follow both legal precedent and common sense.”
UPDATE: BASF files motion to intervene in Ninth Circuit case that vacated dicamba registrations.
Friday, June 12, 2020, at 4:25, BASF representatives notified media the company filed an emergency motion to interview following the decision to vacate federal registrations for Engenia, FeXapan and XtendiMax. The June 3, 2020 decision is the first time BASF's Engenia was brought into the case.
BASF is requesting intervention because of the sudden and severe financial impact the vacatur has on farmers during the height of spraying season, with many farmers having less than one month to complete dicamba applications.
“Taking this action during the height of the application season gives no regard to the significant investments farmers have made in their businesses and leaves them without viable options for the growing season,” said Paul Rea, senior vice president, BASF Agricultural Solutions North America. “Farmers have counted on applications of dicamba-based products to control troublesome weeds for decades, and they continue to need these tools now and in the future.”
UPDATE: Corteva files motion to intervene with U.S. Ninth Circuit Court of Appeals.
Corteva Agriscience also filed a motion to intervene with the Ninth Circuit case regarding dicamba technologies. Corteva's FeXapan product was no mentioned in the lawsuit until until June 3, 2020, prior to that only XtendiMax was involved.
The company said in a press release it's seeking to intervene to preserve their rights and to support the rights of customers to use the impacted dicamba technologies. Corteva says it's an effective weed management tool for farmers when used according to the label.
In the motion, Corteva also seeks to preserve the role of EPA to administer the Federal Insecticide, Fungicide, and Rodenticide Act, including granting or cancelling crop protection product registrations for the benefit of ag and society.
Where do you stand legally?
As you spray dicamba today, it is legal. Stay in tune for updates should that change with a court decision. However, with the federal label vacated there’s potential for more risk.
Essentially, if you have dicamba drift onto a neighbor’s field and they bring forward a civil lawsuit against you the damage amount (money you could potentially pay) is likely no greater than before, according to Todd Janzen, president of Janzen Agricultural Law, LLC. However, the burden of proof shifts from the plaintiff, to the defendant now. Which means it could be harder to win a case brought against you.
In addition, if you purchased dicamba products Engenia, FeXapan or XtendiMax between June 4 and June 8 when EPA issued the final cancellation, there is concern for the legality of that supply. To be safe, experts recommend returning that product.
EPA next steps if vacatur re-enforced.
If the Court sides with the plaintiffs in this recent motion, EPA does have a few options that could allow farmers and applicators to use dicamba up to the cutoff date.
“EPA could file an emergency application with the U.S. Supreme Court asking for a stay pending the filing and disposition of a petition for certiorari [appeal],” says Kristine Tidgren, director for the Center for Agricultural Law and Taxation at Iowa State University. “Seeking emergence en banc review would [be] a less likely action. All of this takes time and it’s hard to predict what will happen.”
*BASF update added 4:35 p.m. June 12, 2020.
*Corteva update added 8:10 a.m. June 15, 2020.
Read more about recent lawsuits:
Dicamba’s Future is Shaky—Is Enlist Next on the Chopping Block?
