Amicus Curiae Briefs in Dicamba Case Support Intervenors’ Request for En Banc Hearing

Six trade associations filed an amicus curiae brief in support of BASF’s petition for a rehearing en banc which was filed on July 20. They argued that the decision to vacate three dicamba over-the-top pesticides should be considered again before the entire court because of the significance of the decision.

The brief argues that granting an en banc hearing would give affected companies and farms,  including BASF and E.I. Pont du Nemours the intervening respondents in the case, appropriate time to respond to the judicial challenges against the dicamba products. It says the review would “clarify and reaffirm interested party’s rights to receive notice of and an opportunity to comment on” the judicial question about the registration of the three dicamba products.

They also claimed that the panel did not apply the “substantial evidence” standard which the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) uses to determine if products should be registered. The standard was allegedly cited but not used correctly.

The brief stated, “if FIFRA registrations could be vacated whenever a court found a purported cost that the EPA did not expressly consider, then numerous agency decisions would be subject to invalidation.  This uncertainty would substantially undermine Growers’ legitimate reliance on the EPA’s ability to make science-based determinations without undue and unpredictable judicial invalidation.”

The organizations, represented by Bradley Arant Boult Cummings LLP, included the American Farm Bureau Federation, the American Soybean Association, National Cotton Council of America, National Association of Wheat Growers, National Corn Growers Association, and National Sorghum Producers.

The associations said in their motion to file the brief that they “have direct and immediate interests in the Panel Opinion’s vacatur of the registrations of the Dicamba Products.  In particular, the Panel Opinion adversely affects the predictability, efficiency, and sustainability of Growers’ farming operations and their ability to rely on predictable and science-based regulatory decision-making and governmental oversight.” They claim experience which will allow them to supply the court with “practical information.”

CropLife America also filed a request on Thursday to file an amicus curiae brief in support of the Intervenors’ request for an en banc hearing. The Environmental Protection Agency (EPA) gave consent to the motion, along with Monsanto, E.I. du Pont de Nemours and Company, and BASF Corporation. The request said that CropLife America would be able to provide a unique perspective on the order to vacate dicamba and additional experts to explain scientific judgements.

The brief said that if the court grants the hearing it will prevent harm to CropLife America’s members and the “pesticide registration framework.” The company, represented by Arent Fox LLP, said that their “substantial experience with FIFRA’s registration process, including the risk/benefit analysis EPA conducts to make decisions concerning approvals of new pesticide products” would be helpful for the court in the hearing.

CropLife America claimed that the panel which gave the order to vacate the products “improperly substituted its own assessment of the risks of the dicamba products for EPA’s,” and did not recognize the role of the EPA to balance risks and benefits and the EPA’s evidence supporting its decision to approve the products. The organization claimed that the EPA uses a rigorous, science-based process when approving pesticides and has individuals with expertise in the field. They claim the panel’s decision usurped this role from the EPA.