EPA defended its decision to allow farmers to continue to use three vacated dicamba herbicides — XtendiMax, FeXapan and Engenia — and asked the Ninth Circuit Court of Appeals to throw out a motion filed to hold the federal agency in contempt.
That emergency motion was filed last week by a group of farm and environmental organizations that had successfully brought a lawsuit against EPA, which resulted in a panel of judges on the Ninth Circuit vacating the three registrations on June 3.
On June 8, EPA issued an order canceling the registrations but allowing farmers and commercial applicators to continue to use “existing stocks” of the herbicides in their possession as of June 3. That use was permitted through July 31, although state labels and restrictions still apply. See more here.
On June 11, the plaintiffs in the lawsuit asked the Ninth Circuit to order an immediate halt to that use and hold the EPA in contempt, based on their argument that continued use violated the court’s order to vacate the registrations. See the story here.
In a response filed late on June 16, the EPA argued that vacating the registrations does not technically affect the use of the now-unregistered herbicides.
“… Rescission of a pesticide registration (either by judicial or administrative action) only makes it illegal to distribute or sell that pesticide,” the agency’s response said. “It does not outlaw use of products already legally purchased.”
The plaintiffs had argued that EPA’s order would permit up to 16 million pounds of dicamba to be applied over the top of cotton and soybeans through July 31, which could cause widespread off-target dicamba injury once again — a phenomenon that was instrumental in the judges’ decision to vacate the registrations.
The agency said the court’s vacatur order allowed for “a responsible winddown of existing stocks instead of banning their use immediately and completely.” Ending use at the beginning of the in-season spray season “would have draconian effects on the U.S. agricultural system,” the agency argued.
EPA even argued that because use of an unregistered pesticide is not technically illegal under federal law, the agency’s existing stocks order could actually provide an avenue for farmers to use the herbicides “safely and appropriately, for a limited period of time.”
The plaintiffs now have two days to respond to EPA’s arguments, and then the judges will issue their ruling on the emergency motion.
In the interim, both Bayer and BASF filed opposing motions with the Court on June 16, defending EPA against the plaintiff’s emergency motion to halt use and hold EPA in contempt. Bayer is listed as a defendant-intervenor in the case, and BASF has petitioned to be one as well, but neither party was invited by the judges to file motions. It’s not clear if the plaintiffs will need to respond to those motions as well before the judges’ ruling.
In a show of industry strength and backing, seven national commodity and ag trade groups filed petitions to become “amicus curiae,” or “friend of the court,” which allowed them to offer a brief to the Ninth Circuit backing up EPA’s position and defending the agency’s existing stocks provision. Those groups were CropLife America, and then a coalition group including the American Soybean Association, the National Cotton Council, the National Corn Growers Association, the National Association of Wheat Growers, American Farm Bureau and the National Sorghum Producers.
See the coalition’s brief here.
The plaintiffs argued that this last-minute flurry of filings and additions to the case was an attempt to intimidate and distract. “EPA and the pesticide companies have tried to confuse the issue and try to intimidate the Court,” said George Kimbrell, legal director for the Center for Food Safety. “The Court held the product uses unlawful and EPA’s manipulations cannot change that.”
WHAT IS LEGAL NOW
For now, EPA’s cancellation order and its existing stocks provision still stand, and farmers and commercial applicators who had XtendiMax, FeXapan and Engenia in their possession as of June 3 can apply them according to their former labels. (Tavium’s registration was not affected by the ruling).
However, keep in mind that a number of states have Section 24(C) special local needs labels with dicamba cutoff dates that are rapidly approaching. Specifically, Indiana and Minnesota have June 20 cutoff dates. Illinois has moved its original June 20 cutoff date to June 25. See more on that Illinois decision here.
The former federal labels also only permit applications for 45 days after soybean planting and 60 days after cotton planting.
Moreover, some states have other legal complications that halt use before the July 31 deadline issued by EPA.
For example, the Ohio Department of Agriculture has noted that the state registration for these three herbicides end on June 30, and with no existing federal registration, they cannot be renewed. So Ohio farmers and applicators cannot legally apply the herbicides after June 30. (See the ODA statement here.)
And in Arkansas, all use of dicamba has been illegal since the state’s May 25 cutoff date.
Farmers and applicators should take care to check for updates on dicamba use from their state departments of agriculture before using the three canceled products.
Watch www.dtnpf.com for updates on the Ninth Circuit’s response to the emergency motion to halt use of these three dicamba herbicides in the days to come.
Emily Unglesbee can be reached at Emily.email@example.com
Follow her on Twitter @Emily_Unglesbee
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