A panel of Ninth Circuit Court judges denied an emergency motion to halt dicamba use and hold EPA in contempt Friday.
The decision is an important win for the EPA, which obeyed the Ninth Circuit’s June 3 order to vacate three dicamba registrations but allowed farmers and commercial applicators to continue applying “existing stocks” of XtendiMax, Engenia and FeXapan through July 31.
That means EPA’s existing stocks provision still stands, and growers can continue using any stocks of those herbicides in their possession as of June 3, as long as they obey the former federal labels and any existing state regulations on dicamba use. Keep in mind that some states have already exceeded or are nearing dicamba cutoff dates.
However, the legal battle over dicamba is far from over.
The Ninth Circuit is permitting both BASF, which owns Engenia, and Corteva Agriscience, which markets FeXapan, to join Bayer as defendant-intervenors in the case. This is important because, on June 16, BASF filed a motion asking the court to recall and stay its original mandate vacating the registrations. The judges have given the plaintiffs — a group of farm and environmental groups — until June 23 to respond before they rule on that request.
“BASF will suffer irreparable harm if the mandate is not recalled or is immediately re-issued, including loss of its procedural rights, damage to customer relationships, and tens of millions of dollars in unrecoverable commercial losses,” BASF’s motion stated.
Both BASF and Corteva have stated in court filings that they were not aware that their herbicides’ registrations were at stake in this lawsuit until June 3, and claim they were denied the opportunity to sufficiently defend their products.
At issue is the fact that the original lawsuit, first filed in 2017, only mentioned XtendiMax, which was registered by Monsanto, now owned by Bayer. When the lawsuit was re-filed in 2019, it was expanded to address EPA’s entire 2018 re-registration decision for dicamba herbicides, which included all three herbicides. (Syngenta’s dicamba herbicide, Tavium, was not included in this lawsuit and the judges’ vacatur order). But BASF and Corteva are arguing that this new scope of the case was not known to them until the court issued its June 3, 2020, decision to vacate all three herbicides.
The plaintiffs expressed frustration with the court’s decision not to grant their emergency motion to halt dicamba use.
“We’re disappointed the court stepped away from its earlier decision to immediately stop the ongoing spraying of this dangerous pesticide that has harmed farmers across much of the U.S.,” said Stephanie Parent, an attorney for the Center for Biological Diversity and co-counsel in the case, in an emailed statement to DTN.
But she noted that the court’s original mandate remains a win for the plaintiffs for now. “Looking forward, it lays an important foundation for the EPA to actually start following the law and the science,” she said. “Bowing to the industry and ignoring family farmers when approving pesticides is not a winning strategy for the EPA or our environment.”
See more on the Ninth Circuit’s original ruling vacating the registrations here: https://www.dtnpf.com/….
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