Ag Groups Argue Dicamba at DC Circuit

Ag Groups Wait for Dicamba Decision From DC Appeals Court on Labels Challenge

Todd Neeley
By  Todd Neeley , DTN Environmental Editor
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Ag groups continue to fight EPA label changes to dicamba in a case before an appeals court. (DTN file photo)

LINCOLN, Neb. (DTN) -- Two agriculture groups made oral arguments last week on a case in federal appeals court that could determine the future of the herbicide dicamba.

On March 15, 2022, the EPA announced approved label amendments that further restricted the use of over-the-top dicamba in Iowa and Minnesota. Those changes were made to federal labels for XtendiMax, Engenia and Tavium.

The American Soybean Association and the Plains Cotton Growers, Inc. filed a petition for review with the U.S. Court of Appeals for the District of Columbia Circuit in St. Louis, Missouri, on March 24, 2022.

In oral arguments before the appeals court on Dec. 8, 2022, the groups asked the court to clarify jurisdictional rules under the Federal Insecticide, Fungicide and Rodenticide Act, or FIFA, and to require the EPA to use the best available science when evaluating dicamba pesticide registrations and potential impacts to species protected under the Endangered Species Act.

The EPA's decision to revise the federal label, in consultation with the dicamba registrants, for state-by-state needs, was considered to be unusual. It stems from EPA's new policy of no longer permitting states to add further restrictions on a pesticide via Section 24(c) special local needs labels. Now states that want to further restrict dicamba must work through their own state rulemaking or work to create federal label amendments with EPA and registrants.

In the petition to the DC Circuit, the ag groups said the actions taken in March 2022 violated FIFRA, ESA and the Administrative Procedure Act by "imposing registration conditions that exceed statutory authority, are arbitrary and capricious, are an abuse of discretion, are not supported by substantial evidence when considered on the record as a whole and are not otherwise in accordance with the law."

The groups asked the court to remand the amendments back to the agency.

Alan Meadows, American Soybean Association regulatory committee chairman and a soybean grower from Halls, Tennessee, said in a news release last week that the group is hopeful the court will see the new dicamba restrictions released in March 2022 were too restrictive.

"Growers need herbicides like dicamba to protect crops and maintain important conservation practices, for example, reduced tillage," Meadows said.

"By failing to use good science and data, EPA is unnecessarily making the farmer's job harder and hurting our bottom line."

Kody Bessent, Plains Cotton Growers CEO, said his group is concerned about EPA creating "nationwide arbitrary cutoff date" when it comes to dicamba.

In November 2020, the groups sued the EPA in the U.S. District Court for the District of Columbia, following the agency's release of three dicamba labels. The groups argued those labels were too restrictive and would hamper cotton and soybean growers' ability to control herbicide-resistant weeds.

The new labels include a national cutoff date for use -- June 30 for soybeans and July 30 for cotton -- as well as larger buffers to protect neighboring areas and endangered species.

The district judge issued a stay on Sept. 3, 2021, pending the outcome of the current case in the DC Circuit.

Read more on DTN:

"Two Commodity Groups Sue EPA, Demand Fewer Dicamba Label Restrictions,"…

"EPA Amends Dicamba Labels to Add Cutoffs for Iowa and Minnesota,"…

"EPA Reviews Proposed Dicamba Label Changes From Bayer for 2023,"…

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Todd Neeley

Todd Neeley
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