Groups Want Dicamba Registration Pulled

LINCOLN, Neb. (DTN) -- Food safety groups asked a federal judge in Arizona this week to vacate the dicamba registrations of Bayer's XtendiMax herbicide, BASF's Engenia and Syngenta's Tavium, in an ongoing legal battle that could determine how or if the products can be used.

The case is unlikely to affect the dicamba's availability for the upcoming growing season, because briefing schedules run through June in the U.S. District Court for the District of Arizona -- meaning a potential court decision could come later in the summer.

On Wednesday, the Center for Biological Diversity, National Family Farm Coalition, Pesticide Action Network, and Center for Food Safety filed a motion for summary judgement in Arizona court. Such a motion essentially asks the court to rule based on the undisputed facts in a case.

The case in Arizona was stayed by the court in July 2021, while the U.S. Court of Appeals for the District of Columbia Circuit decided jurisdictional questions related to a separate lawsuit. There is a question about whether legal challenges on dicamba should be heard by district or appeals courts.

George Kimbrell, an attorney for the Center for Food Safety, a plaintiff in the Arizona case, told DTN the district judge in Arizona last fall ruled the district court was the proper setting and let the case resume after several stays and restarts in the past couple of years.

The Arizona court had been waiting for the U.S. Court of Appeals for the District of Columbia Circuit to make a jurisdiction determination.

In that appeals court, the American Soybean Association and the Plains Cotton Growers, Inc., filed a petition for review on EPA's March 2022 label amendments that further restricted the use of over-the-top dicamba in Iowa and Minnesota. That case is pending in the appeals court. The ag groups have not asked the appeals court to vacate that decision, even during oral arguments held in December.

In addition, the U.S. Court of Appeals for the Ninth Circuit ruled in 2020 that a Trump administration approval of dicamba violated the notice-and-comment law. The Ninth Circuit agreed and ordered the EPA to act in response.

In the motion for summary judgement filed in the district court this week, the environmental and food safety groups said the record on damage from dicamba drift speaks for itself.

"Today's summary judgment filing has been some time coming, for multiple reasons beyond plaintiffs' control," the groups said in the motion.

"And it is comprehensive, as plaintiffs have endeavored to provide the court with the clearest picture possible, marshaling all the evidence and setting forth the lengthy background. But stepping back, this case is also quite straightforward. Less than three years ago, the Ninth Circuit held unlawful EPA's controversial dicamba approval for multiple reasons and vacated its registration."

The groups said the Ninth Circuit's factual findings cataloged the "damning, unprecedented record of widespread harm from dicamba drift" to farmers and the environment.

"The court gave a long laundry list of errors for EPA to fix, if it were to try and re-register the same dicamba use," the groups said this week.

"Most importantly, EPA had to actually analyze and weigh the costs of drift damage to farmers and could not rely on an unrealistic, impossible label to conclude dicamba use does not cause unreasonable adverse effects, when all the evidence screams that it does. Instead, EPA, under the prior administration, rushed to re-approval in a matter of months, fixing none of it, thumbing its nose at the court."

When contacted by DTN, BASF provided this statement: "We are aware of and reviewing the plaintiffs' motion for summary judgment, and we will not comment on active litigation. As the season is getting underway in many parts of the country, we remain focused on dicamba stewardship and training growers for successful applications in 2023."

Bayer did not respond to DTN's request for comment, while Syngenta said it will not comment on pending litigation.

On Feb. 16, 2023, EPA posted label amendments to its public docket to further restrict over-the-top dicamba herbicides in Iowa, Illinois, Indiana and South Dakota this upcoming growing season, https://www.dtnpf.com/….

Kimbrell told DTN the Arizona court's decision to lift a stay in their lawsuit came after EPA released a report on dicamba drift damage from 2021, https://www.dtnpf.com/….

For additional background:

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

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

Follow him on Twitter @DTNeeley

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