EPA, Monsanto Respond to Emergency Motion to Halt Dicamba Use

The Environmental Protection Agency (EPA) and Monsanto Company filed separate documents opposing the petitioners’ emergency motion in the Ninth Circuit dicamba court case on Tuesday. The petitioners argued the EPA’s cancellation order was consistent with the court’s vacatur order for dicamba.

Judges in the case ruled on June 3rd to cancel registration for three dicamba products, which has caused disagreement in the agriculture industry over the use of the products during this year’s season. Many farmers planned to use the products this year, purchased the products which are now not registered, and planted with plans to use the product.

“EPA can hardly be faulted for not complying with an order the Court never issued, especially when immediately banning use of existing stocks of these pesticides, as Petitioners advocate, would have draconian effects on the U.S. agricultural system,” the EPA states in its opposing document.

The EPA claims it complied with the court’s order because the products remain unregistered and the court order takes away the registration, which applies to distribution or sales, not use of purchased products. It calls the petitioner’s motion a “thinly-veiled attempt to revive arguments the Court already rejected or declined to reach,” and argues the motion should be denied.

“EPA’s June 8, 2020 Cancellation Order reinforces the Court’s order, banning further distribution and sale of existing stocks and facilitating return to the manufacturer. It takes responsible steps to avoid unregulated and inappropriate use of existing stocks that may otherwise result,” the EPA stated in its response.

Monsanto, represented by Latham & Watkins LLP, also argues that the vacatur did not make use of the products unlawful or prohibit the EPA from taking action regarding the dicamba products. “The effect of this Court’s decision was not to make over-the-top use of dicamba immediately unlawful.  The Court did not and under FIFRA (The Federal Insecticide, Fungicide, and Rodenticide Act) could not have done that,” its response stated.

“Petitioners argue that portions of the Court’s opinion suggest that the Court thought nullification of the registrations would preclude herbicide use by growers. But legal obligations are determined by the actions of courts, not speculation about their thoughts or intentions,” Monsanto claimed.

The company said the EPA took action taking the court’s decision into account but also plans for the current growing season. They also noted that order vacated all uses of the dicamba products, but the dangers addressed in the case apply mostly to over the top uses.

Six farmer national trade associations, represented by Bradley Arant Boult Cummings LLP, also filed an amicus curiae brief in opposition to the emergency motion on Tuesday.

“The outcome of this motion will have a direct effect on the Growers, their productivity, their livelihoods, and their contributions to society,” the brief argued. “Growers would bear the significant costs of lesser alternative methods of weed control and yield losses if the Court grants Petitioners’ motion.”