EPA Dicamba Cancellation

EPA Issues Cancellation Orders for Three Dicamba Herbicides

Emily Unglesbee
By  Emily Unglesbee , DTN Staff Reporter
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In a stunning development, EPA has issued cancellation orders for three dicamba herbicides, while allowing for some existing stocks to be used through July 31. (DTN photo by Pamela Smith)

ROCKVILLE, Md. (DTN) -- After five long days of confusion in the industry, EPA has issued a cancellation order for three dicamba herbicides, following a federal appeals court's order to vacate their registrations on June 3.

The agency will permit growers and commercial applicators to use any existing stocks of three herbicides -- XtendiMax, Engenia and FeXapan -- that were in their possession as of June 3.

These growers and commercial applicators will have to use these existing stocks according to their former labels, and apply no later than July 31, the agency stated. Keep in mind that some states have cutoff dates for dicamba use well before that date: https://www.dtnpf.com/….

All other distribution or sale by any other persons or the registrants is prohibited as of June 3, the EPA determined. Retailers are permitted to make arrangements for the return or safe disposal of the herbicides.

The decision marks the end to a five-day-long saga that started on June 3, when a panel of judges on the U.S. Court of Appeals for the Ninth Circuit issued a ruling in a lawsuit vacating the registration of the three herbicides. The court ruled that EPA had violated many tenets of its governing law, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), when it issued conditional registrations for the three herbicides on Oct. 31, 2018. (Tavium, Syngenta's OTT dicamba herbicide, was not affected by the ruling).

See more information on the lawsuit on the court's decision here: https://www.dtnpf.com/… and read the ruling here: https://cdn.ca9.uscourts.gov/….

The decision is sure to shock much of the industry, particularly state regulators, registrants, and commodity groups who had suggested to EPA that it should appeal the Ninth Circuit's decision in their many communications to the agency in the past week. Some industry insiders assumed the long delay between the court order and EPA's response was a sign the agency was doing just that.

"I am stunned," North Dakota State University pesticide specialist Andrew Thostenson told DTN. "Once I read the order, it became clear to me that EPA's lack of response these past several days was due to the scope and gravity of the order that they were writing. It is totally without precedent."

In the decision, the agency is attempting to thread a narrow needle -- both obeying the court's clear-cut order to end use, while also attempting to alleviate some of the pain the order was sure to cause, coming as it did in the middle of spray season, with roughly 60 million acres of dicamba-tolerant Xtend crop acreage anticipated.

"Since the Court issued its opinion, the agency has been overwhelmed with letters and calls from farmers citing the devastation of this decision on the millions of acres of crops, millions of dollars already invested by farmers, and threat to America's food supply," the EPA website declares.

In the cancellation order, the agency estimated that approximately 4 million gallons of these products are in the "channels of trade" across the country.

The plaintiffs in the lawsuit that brought about the Ninth Circuit ruling were not pleased with EPA's decision to permit the use of some existing stocks, which they have vowed to challenge in court.

"Today's disingenuous order from EPA flies in the face of the Court decision holding these pesticides unlawful," said George Kimbrell, legal director for the Center for Food Safety. "It ignores the well-documented and overwhelming evidence of substantial drift harm to farmers from another disastrous spraying season."

"All users that continue to not seek alternatives should be on notice that they are using a harmful, defective, and unlawful product," Kimbrell added. "We will bring the EPA's failure to abide by the Court's order to the Court as expeditiously as possible."

The plaintiffs also decried the long delay in EPA's decision to issue a cancellation order, which permitted additional distributions and spraying to occur beyond June 3, as states determined individually whether to ban the products or keep them available. See more here: https://www.dtnpf.com/….

See EPA's announcement here: https://www.epa.gov/… and the cancellation order here: https://www.epa.gov/….

Emily Unglesbee can be reached at Emily.unglesbee@dtn.com

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Emily Unglesbee