Dicamba Decision Stands

Ninth Circuit Court Denies Companies' Petition to Rehear Dicamba Case

Emily Unglesbee
By  Emily Unglesbee , DTN Staff Reporter
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: The Ninth Circuit turned down a petition by dicamba registrants for a re-hearing of the case that resulted in three dicamba herbicides being vacated on June 3. The companies' final legal recourse now lies with the Supreme Court. (DTN file photo by Pamela Smith)

ROCKVILLE, Md. (DTN) -- On Monday, three dicamba registrants lost one of their last remaining legal options to overturn a federal court's mandate ending the registrations of three dicamba herbicides.

On June 3, a panel of three judges on the U.S. Court of Appeals for the Ninth Circuit issued a decision to vacate three dicamba herbicides, XtendiMax (Bayer), Engenia (BASF) and FeXapan (Corteva Agriscience).

On July 20, all three companies petitioned for a broader group of Ninth Circuit judges to rehear that case. They argued that the judges' initial decision was unfair, unconstitutional and required a full judicial review.

On Monday, the Ninth Circuit Court disagreed and dismissed those requests, known as petitions for "rehearing en banc."

"The full court has been advised of the petitions for rehearing en banc, and no judge of the court has requested a vote on whether to rehear the matter en banc," the judges' order stated. "The petitions for rehearing en banc are DENIED."

See more on the judge's original decision vacating the dicamba registrations here: https://www.dtnpf.com/….

See more on Bayer, BASF and Corteva's request for an en banc rehearing here: https://www.dtnpf.com/….

The decision leaves the three companies with one final legal option to overturn the June 3 Ninth Circuit ruling -- an appeal to the U.S. Supreme Court.

In emailed statements to DTN, all three companies expressed disappointment with the Ninth Circuit's denial of their en banc petitions. Corteva's statement said it was "too early to comment" on the possibility of a Supreme Court appeal, but BASF's mentioned it as a possibility.

"We disagree with the decision and believe BASF deserves an opportunity to be heard on the merits," the BASF statement said. "We are assessing additional legal options, including a challenge to the U.S. Supreme Court."

Bayer's statement added: "We believe our request for rehearing should have been granted for several reasons, including that the court disregarded the EPA's expert scientific judgements. Indeed, the EPA conducted an extensive review and considered all relevant science prior to issuing the registration for XtendiMax. We are assessing our options to still address the court's ruling and set the record straight."

In the meantime, the EPA is actively evaluating new registrations for Bayer's XtendiMax and BASF's Engenia herbicides and are expected to make a decision sometime this fall. Both companies submitted additional data and products to the agency for review and have expressed optimism that growers will have access to their dicamba herbicides for use in Xtend crops in 2021.

See more here: https://www.dtnpf.com/….

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

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Emily Unglesbee