EPA Wants Dicamba Case to Stay on Hold

LINCOLN, Neb. (DTN) -- Both sides in an ongoing dicamba federal lawsuit filed by environmental groups in Arizona continue to wrangle over whether the court should lift a stay in the case.

The EPA this week asked the U.S. District Court for the District of Arizona to keep the stay in place, in response to the Center for Biological Diversity's request of the court to allow briefing to reconvene.

"This court reasonably stayed this action to allow the D.C. Circuit to determine whether it believes that the courts of appeals have exclusive jurisdiction over this matter," EPA said in a court document filed on Tuesday.

"Although the existing parties to the D.C. Circuit litigation agree that the courts of appeals lack original jurisdiction, the court must make that determination for itself. The only update to speak of in American Soybean Association is that the parties have filed briefs in accordance with the D.C. Circuit's scheduling order of March 29, 2022. Because this update has no bearing on the rationale underpinning the current stay, it does not warrant lifting that stay."

In December 2020 the Center for Food Safety and Center for Biological Diversity asked the Arizona court to vacate its 2020 dicamba registrations of Engenia, Tavium and XtendiMax, based on its risks to the environment and endangered species.

In July 2021, the district court judge granted a motion to stay the groups' lawsuit, while the legal system worked out questions of jurisdiction in the U.S. Court of Appeals for the District of Columbia Circuit, where a handful of dicamba-focused lawsuits had been consolidated.

The American Soybean Association and the Plains Cotton Growers have sued EPA arguing the 2020 dicamba registration was too restrictive for soybean and cotton growers and hurts their ability to control herbicide-resistant weeds.

The Center for Biological Diversity asked the Arizona court on Aug. 18, 2022, to lift the stay, telling the court all parties have agreed the district court is the proper venue for such challenges to the dicamba registrations.

"Thus, lifting the stay and allowing the present litigation to proceed is necessary to protect plaintiffs' interests, U.S. agriculture, and the environment, while continuing a stay of the case risks significant harms to U.S. agriculture and the environment," the group said in its filing.

EPA said in a May 2022 filing in the Arizona court that there could be potential label changes coming to over-the-top dicamba herbicides for the 2023 growing season.

The EPA filing was prompted by Arizona District Court judge, David C. Bury, asking EPA to clarify its plan for dicamba regulation in 2022 and beyond, in an effort to determine if he should lift a stay and let the lawsuit proceed.

Earlier this month, a new EPA draft ecological risk assessment released finds the herbicide dicamba potentially adversely affects birds, mammals, bees, freshwater fish, aquatic vascular plants, and non-target terrestrial plants, with the "primary risk of concern" for non-target terrestrial plants through spray drift and volatilization.

In addition, the agency said it found no evidence new measures put in place in October 2020 for over-the-top applications helped reduce the number of off-target incidents.

EPA said in the 287-page draft risk assessment that in 2021 the agency received nearly 3,500 incident reports not already reported as part of the Incident Data System. Those included damage to non-dicamba-tolerant soybean, "numerous other crops," as well as to a wide variety of non-target plants in non-crop areas including residences, parks and wildlife refuges.

Read more on DTN:

"EPA Draft Contains Dicamba Concerns," https://www.dtnpf.com/…

"Nearly 3,500 Dicamba Reports," https://www.dtnpf.com/…

"Dicamba Faces Legal Battlefield," https://www.dtnpf.com/…

"Proposed Changes to Dicamba," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

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