What Are The Legal Surprises In The Dicamba Decision?

The Environmental Protection Agency faces a deadline today when it comes to Dicamba. The Ninth U.S. Circuit Court of Appeals wants to know by today why the agency is allowing continued over-the-top use of Dicamba on soybeans and cotton. The court vacated registration on three products - Engenia, FeXapan and XtendiMax earlier in the month.

The decision coming at the height of spraying season. Last Thursday, the Center for Food Safety, one of the petitioners in the case against the use of dicamba, filed an emergency legal motion.

The center asked the court to find the EPA in contempt for quote-"refusing to abide by a federal court order suspending use of the pesticide Dicamba.”

The plaintiffs estimating up to 16 million pounds of dicamba could be applied in the coming weeks. On Friday, the court ordered EPA to respond by today to the group's request. The petitioners then have until this Thursday to file their reply. Some farmers are running out of time.
 
Many states had enacted earlier cut off dates for these dicamba formulations than the EPA label will now with everything that has happened since June 3, an EPA statement since they extended applications to July 31. But we still have several states, including Indiana and Illinois, with cut off dates in June.

Two companies that use dicamba in their products, filed motions of their own. Corteva, the maker of FeXapan, saying in a news release, "Corteva is seeking to intervene to preserve our rights and to support the rights of customers to use the impacted dicamba weed control technologies. We believe dicamba is an effective weed management tool for farmers when used according to the label."
 
BASF, the maker of Engenia, also filing an emergency motion to intervene. Paul Rea, Senior Vice President of BASF Agricultural Solutions North America said, "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." Bayer, the maker of Xtendimax, intervened a year ago.

U.S. Secretary of Agriculture Sonny Perdue released a statement:

“USDA supports the actions taken by the EPA to respond responsibly to the decision of the Ninth Circuit regarding Dicamba. 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.”

Margy Eckelkamp, editor of “The Scoop” talks with Farm Journal editor and AgDay host Clinton Griffiths about the situation. Eckelkamp says the SCOOP put up a poll for its audience of ag retailers, agronomists, customer applicators and asked, “What percentage of those intended Dicamba acres have been sprayed yet?”

“[The poll shows] up to 76% said they were not done spraying Dicamba,’” says Eckelkamp.

She says the timing of the decision is what makes this case so important. She says “days matter “with this situation.

“Many states had enacted earlier cutoff dates for these dicamba formulations than the EPA label,” says Eckelkamp. “Now, with everything that has happened since June 3 and EPA’s statement since, they extended applications to July 31 but we still have several states, including Indiana and Illinois, with cut-off dates in June.”

Farmers know they have to abide by label instructions and spray before their cutoff dates to potentially avoid a lawsuit. Todd Janzen with Janzen Ag Law in Indianapolis, Indiana says if farmers are in doubt about spraying now after the 9^th circuit court’s ruling and EPA’s cancellation order, to look at what their state agency is enforcing.

“The enforcer, in most instances, is going to be your state agency,” says Janzen. “If they’re telling you it’s OK, I would imagine they aren’t going to be coming out and finding you if you’re spraying Dicamba.”

Meanwhile the industry wonders, regardless of what state agencies say, if farmers or applicators could still be subject to legal problems.

Janzen says he believes farmers are not necessarily open to “more damages or liability” due to the 9^th Circuit Court’s verdict.

“The damage is the damage,” says Janzen. “If they damage 80 acres of tomatoes with off-target drift, they’re going to be liable for that regardless of this June 3 order by the 9^th circuit [court].”

However, He says because of the court order, he believes it could become a lot easier for plaintiffs to potentially prove their case for damages in court.

“It might make the case easier to prove from a plaintiff stand-point but I don’t know that it necessarily increases the damage unless a plaintiff says that somebody was completely reckless or grossly negligent,” says Janzen. “They can say [how] you were doing something that the court has already determined to be dangerous and shouldn’t be applied at all,” says Janzen.

June 3 is the last day farmers and applicators needed to have the dicamba in their possession to still legally spray this year.

Janzen says the timeframe from June 4 to June 8, when the EPA issued its cancellation order, is a grey area. He encourages farmers to return product to ag retailers or for ag retailers to request the product back if it was sold within that timeframe.