ROCKVILLE, Md. (DTN) -- Confusion reigns about the legality of dicamba this week, as states have scrambled to issue individual interpretations of a federal court's stunning decision to vacate three dicamba registrations on June 3, in the middle of the spray season.
Without clear instructions from the EPA, to which the court's "vacatur" order was directed, states have been left to draw their own conclusions about what the ruling means for retailers, farmers and applicators.
The result is a growing patchwork of conflicting rules regarding spraying and selling the three dicamba herbicides in question -- XtendiMax (Bayer), Engenia (BASF), and FeXapan (Corteva). (Syngenta's Tavium herbicide was not affected by the ruling). So far, more than a dozen states have declared that the products remain available for sale and use in the state until EPA says otherwise, while two other states -- Illinois and South Dakota -- have ordered a halt to all sales and use.
Read more about the ruling, which came from the U.S. Court of Appeals for the Ninth Circuit, here: https://www.dtnpf.com/….
The plaintiffs who brought the original lawsuit asking for an end to these dicamba registrations released a furious statement on June 8, taking EPA to task for not issuing guidance to the states, which has resulted in continued applications of the herbicides.
"EPA should immediately confirm to the states that these uses are illegal," read the statement, released jointly by the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America.
"EPA's failure to do so to this point is a dereliction of the agency's duty to farmers and the public," it continued. "We represent farmers, including many who have suffered years of drift damage from these harmful dicamba products. They must not be subjected to a fourth year of rampant injury to their crops from dicamba drift."
EPA REMAINS SILENT SO FAR
The order from the panel of judges is straightforward. They stated that "we ... vacate the EPA's Oct. 31, 2018, registration decision and the three registrations premised on that decision."
The judges had the option to "remand without vacatur," or send their criticism back to EPA for further consideration, while allowing the conditional registrations for the three herbicides to stand as EPA worked to fix them.
They chose not to do that, stating instead that the conditional registrations were so "fundamentally flawed" that it was "exceedingly unlikely" that they could be fixed and reinstated.
The reception of this ruling has been chaotic, largely because EPA has remained silent on its next steps.
The agency's legal options include accepting the vacatur order and issuing cancellation orders to the three dicamba registrants, or asking the court to review its decision, or appealing to the Supreme Court and asking for an emergency stay of the vacatur order.
But for now, the agency has only released a lone statement expressing its disappointment with the court's decision and stating that "EPA is assessing all avenues to mitigate the impact of the Court's decision on farmers."
STATES MAKE THEIR OWN DECISIONS
In the absence of federal guidance, state departments of agriculture are delving into their own legal analyses of the vacatur order, with varying results.
Two states -- Illinois and South Dakota -- are taking the court order at face value and have declared that the three registrations no longer exist and thus cannot be sold or used in the state.
"Pursuant to [the Federal Insecticide, Fungicide and Rodenticide Act], all pesticides sold, used, or distributed in the United States must be registered with the USEPA," the Illinois Department of Agriculture said in a statement. "Therefore, effective June 3, 2020, based on the Ninth Circuit's ruling, Xtendimax, FeXapan, and Engenia cannot be sold, used, or distributed as their registrations have been vacated."
Minnesota officials also held this position for several days, before reversing the state's position on Monday. It's also an interpretation that at least two dicamba registrants -- Bayer and BASF -- appear to agree with.
"Pending further guidance from the U.S. EPA, Bayer has paused its sale, distribution, and use of XtendiMax herbicide," a company statement reads on a website set up specifically to inform customers of the legal steps ahead following the court order. See it here: https://www.roundupreadyxtend.com/…
BASF has also halted its own sales, per the court order, but is currently directing farmer and retailer customers to their state regulatory agency for advice instead. "BASF is not able to recommend the use of or sell Engenia herbicide at this time," the company told DTN in a statement. "We're working to understand the implications of the court's order. As laws vary by state, we recommend farmers and retailers who are in possession of Engenia herbicide contact their state regulatory authority to determine if they can still apply or sell Engenia herbicide."
So far, at least 13 other states are keeping the products available. Though the wording ranges from state to state, most of their statements suggest the products' state registrations cannot be vacated without a formal order from EPA.
"While the court's decision affected the federal registration of these products, it made no mention of state registrations," said a statement from the North Dakota Department of Agriculture issued on June 5. "At this time, the EPA has not directed the state to cancel its state registrations of XtendiMax, FeXapan and Engenia."
In at least one state, Indiana, state officials believe the state registrations can exist without a federal pesticide registration. "Indiana pesticide law does not currently require federal registration as a condition of state registration," a statement from the Office of Indiana State Chemist said. "OISC has not initiated any suspension or cancellation orders for these products at this point."
Even within states, there is disagreement on how to proceed. While the Kentucky Department of Agriculture has announced it is keeping the dicamba herbicides available, the University of Kentucky's weed science department is recommending growers do not use the herbicides until they get more guidance from EPA, said Travis Legleiter, an Extension weed scientist with the university.
The legal footing of state actions allowing dicamba use is unclear, given the unprecedented situation of a vacatur order in the middle of spray season and EPA's continued silence, legal analysts told DTN.
"This is a unique situation and there is uncertainty regarding the legal status of using the three products until EPA takes action," said Tiffany Dowell Lashmet, an agricultural law specialist with Texas A&M AgriLife Extension Service. Lashmet said she is recommending applicators and farmers proceed with great caution, consulting with their state department of agriculture and their own attorney.
"I'm currently taking the approach of giving people the [Ninth Circuit] opinion, giving them the Texas Department of Agriculture statement, and telling them they should talk to their attorney before using any of these products," Lashmet said.
The plaintiffs voiced certainty that all state actions permitting sales and use of the herbicides are currently illegal in their statement.
"The ruling was crystal clear: These pesticides can no longer be legally sold or sprayed on dicamba-resistant soybeans or cotton," they said. "State officials have called on EPA for clarification of the Court's ruling, some maintaining their states will allow continued use of dicamba unless or until directed otherwise. But the EPA has ignored their calls, just as it ignored the growers harmed by dicamba."
Here is a full list of state actions on dicamba in the past week, which will be updated as necessary:
-- ALABAMA: Still available: http://agi.alabama.gov/….
-- INDIANA: Still available: https://www.oisc.purdue.edu/….
-- IOWA: Still available: https://iowaagriculture.gov/….
-- KANSAS: Still available: https://webapp.agron.ksu.edu/….
-- KENTUCKY: Still available: https://www.kyagr.com/….
-- LOUISIANA: Still available: http://www.ldaf.state.la.us/….
-- MINNESOTA: Still available: https://content.govdelivery.com/….
-- MISSISSIPPI: Still available: https://agnet.mdac.ms.gov/….
-- MISSOURI: Still available: https://agriculture.mo.gov/….
-- NEBRASKA: Still available: https://nda.nebraska.gov/….
-- NORTH DAKOTA: Still available: https://www.nd.gov/….
-- OHIO: Still available: https://agri.ohio.gov/….
-- OKLAHOMA: Still available: https://www.morningagclips.com/….
-- SOUTH DAKOTA: Sales and use halted: https://sdda.sd.gov/….
-- TENNESSEE: Still available: https://www.tn.gov/….
-- TEXAS: Still available: https://texasagriculture.gov/….
-- VIRGINIA: Still available: https://www.vdacs.virginia.gov/….
-- WISCONSIN: Still available: https://content.govdelivery.com/….
Emily Unglesbee can be reached at Emily.firstname.lastname@example.org
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