Dicamba Use Challenged

Plaintiffs Ask Federal Court to Halt Dicamba Spraying, Hold EPA in Contempt

Emily Unglesbee
By  Emily Unglesbee , DTN Staff Reporter
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An emergency motion was filed on June 11, asking a federal court to halt EPA's order allowing existing stocks of dicamba to be used through July 31. (DTN photo by Pamela Smith)

ROCKVILLE, Md. (DTN) -- An emergency motion was filed late Thursday night, June 11, asking the Ninth Circuit Court to halt all dicamba use and hold the EPA in contempt of court for its decision to allow farmers to use existing stocks of three dicamba herbicides.

On June 12, the court's panel of judges responded and ordered EPA to respond to the emergency motion by 5 p.m. on June 16.

Until then, EPA's order still stands. But if the judges ultimately rule against EPA, the motion could once again leave farmers without many dicamba herbicide options to use over millions of acres of dicamba-tolerant soybean and cotton this summer.

The emergency motion was filed by the plaintiffs who brought a lawsuit against EPA to the U.S. Circuit Court of Appeals for the Ninth Circuit, demanding the court end three herbicide registrations -- XtendiMax, Engenia, and FeXapan. They succeeded when, on June 3, three judges ruled in their favor, effectively ending the registrations of the herbicides with a "vacatur" order. Five days later, EPA issued a cancellation order, which ended the registrations but permitted growers and commercial applicators to continue using "existing stocks" of the herbicides through July 31.

See the story here: https://www.dtnpf.com/….

The plaintiffs, which include the Center for Food Safety and the Center for Biological Diversity, estimated that up to 16 million pounds of dicamba could be applied in the weeks ahead, in direct violation of the Ninth Circuit's ruling.

"Trump's EPA is so rogue it thinks it can blow off a federal court ruling that stops the damaging dicamba spraying in an administrative order," said George Kimbrell, legal director of the Center for Food Safety, and lead counsel in the case, in a press release. "EPA needs a lesson in separation of powers and we're asking the court to give it to them."

When the judges initially vacated the dicamba registrations on June 3, they ruled that EPA had acted unlawfully by registering herbicides in 2018 when there was a clear risk they would cause unreasonable adverse effects on the environment. The judges cited the reporting of the widespread off-target dicamba injury in 2017 and 2018 as evidence for ending the registrations.

By permitting use to continue through July 31, the EPA is ignoring those conclusions and setting the industry up for another year of herbicide damage, the plaintiffs argued in their emergency motion.

"EPA's administrative order authorizes dicamba OTT spraying until July 31, 2020, guaranteeing drift damage throughout June and July, the peak period for such drift," they wrote, adding that "EPA made no attempt to address these harms before greenlighting them, in spite of this Court's finding that EPA had substantially underestimated the drift incidents and the extent of damage."

The motion also argues that EPA did not have the authority to issue a cancellation order, given the extreme measures the judges went to in their original ruling.

"Judicial vacatur is not the same as pesticide cancellation," the plaintiffs argued. "OTT dicamba use was not canceled: the new uses were vacated. The differences between vacatur and pesticide cancellation under FIFRA are significant: FIFRA cancellation is subject to extensive rules and process that have nothing to do with a judicial order ... Vacatur is very different: setting aside or vacating voids the approval, returning the status quo ante before it was granted."

The plaintiffs asked the judges to hold EPA administrator Andrew Wheeler in contempt of court.

"EPA and Administrator Wheeler should be found in contempt for not just failing to substantially comply with, but blatantly and intentionally violating the entirety of the Court's Order," they wrote.

EPA released a statement to DTN this morning, defending its order.

"EPA's order -- which protects the livelihood of our nation's farmers and the global food supply -- is consistent with the Agency's authority and with the Ninth Circuit Court of Appeal's June 3, 2020 mandate," the agency said in an emailed statement to DTN. "EPA stands by its order and will vigorously defend against attempts to limit the agency's authority to provide clarity and certainty to farmers."

Dicamba registrant Bayer, which is listed as a defendant-intervenor in the original lawsuit, vowed to fight the emergency motion in court.

"We are reviewing the filing in detail, but do not believe it is proper or well-founded and we are preparing our responsive filing," a Bayer spokesperson said in an emailed statement. "During this critical time, farmers and commercial applicators can continue to use low volatility dicamba herbicides per the U.S. EPA's current order."

The judges did not grant Bayer an opportunity to respond to the plaintiff's emergency motion, only EPA.

Both Corteva Agriscience, which markets the FeXapan herbicide, and BASF, which owns Engenia, announced that that they have filed motions to intervene in the lawsuit. Both companies noted that they only became aware that their dicamba products were implicated in the lawsuit when the Ninth Circuit vacated all three registrations on June 3.

See the emergency motion here: https://www.centerforfoodsafety.org/…

Follow www.dtnpf.com for more developments on this case.

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

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Emily Unglesbee