BASF Asks for En Banc Rehearing in Dicamba Case

BASF Corporation, producer of the dicamba product Engenia, asked for a rehearing before the entire panel of judges in the Ninth Circuit on Monday. The court previously vacated the registration of three dicamba over-the-top agricultural products in a case that began over the registration of Monsanto’s XtendiMax, but said the Environmental Protection Agency (EPA) could allow use through the end of July.

“A panel of this Court issued a decision with broad reach and devastating consequences,” the petition stated. “Conducting its review without the administrative record for separate registrations, applying a novel interpretation of the governing statutes, and distorting the standard of review, the panel vacated all three registrations. Knowing it would harm this country’s farmers, the panel had the mandate issue immediately. Its decision is wrong, conflicts with this Court’s and other circuits’ precedents, and presents questions of exceptional importance.”

BASF and E.I. du Pont de Nemours, which produces FeXapan, were allowed to intervene in the case after the Court’s decision to vacate their products. The court did not grant restrictions on their activity as intervenors as the petitioners requested.

The intervenor, BASF, argued in its request for a rehearing that the court’s decision to vacate its registration for Engenia was “inconsistent with basic due process” because it was not given notice that its registration was being debated by the court before the decision to vacate the product was made. BASF further argued that the petitioners in the case did not have standing to challenge the registration for Engenia only in relation to XtendiMax and that the panel did not have jurisdiction to challenge the product.

“In this one decision, the panel significantly expanded both the type and number of challenges that petitioners may now bring directly before the court of appeals. The statute does not permit this expansion of the court of appeals’ jurisdiction. And there is no good reason for it,” BASF stated, noting that the petitioners could have petitioned the EPA, but should not have been allowed to use a challenge against XtendiMax and “sweep” the registration for Engenia into consideration.

The panel also allegedly did not find substantial evidence against dicamba, the document said that it vacated the registration because the EPA did not acknowledge the likelihood that that over-the-top dicamba restrictions imposed in 2018 would not be observed. BASF argued that the EPA should not be required to address each issue. “The panel’s decision may force EPA, in making a pesticide registration decision, to attempt to resolve countless tangential considerations better addressed through other legal frameworks,” BASF said.

Intervenor BASF Corporation is represented by Hogan Lovells.