EPA “Disappointed” With Ninth Circuit Dicamba

The EPA expressed disappointment in a press release after the Ninth Circuit Court ruled against their temporary approval of three dicamba registrations, saying they are assessing ways to mitigate the impact of the decision on farmers. Bayer product XtendiMax, Corteva product FeXapan, and BASF product Engenia were the products impacted by the court’s ruling.

“The 2020 growing season is well underway and this creates undue burden for our first conservationists – farmers. EPA has been overwhelmed with letters and calls from farmers nationwide since the Court issued its opinion, and these testimonies cite the devastation of this decision on their crops and the threat to America’s food supply,” EPA Administrator Andrew Wheeler stated.

The Ninth Circuit Court issued an order on June 3rd ruling that the conditional approval from the EPA for dicamba herbicides violates the Federal Insecticide, Fungicide, and Rodenticide Act. The order states that registrations for the dicamba products are vacated.  “We hold that the EPA substantially understated risks that it acknowledged and failed entirely to acknowledge other risks,” it said.

Bayer said it “strongly disagree(s)” with the ruling and is assessing options. “Depending upon actions by the EPA and whether the ruling is successfully challenged, we will work quickly to minimize any impact on our customers this season. Our top priority is making sure our customers have the support they need to have a successful season.”  Corteva and BASF made similar statements, saying they are reviewing the order and waiting on actions from the EPA.

Dicamba has been used for over 50 years to combat weeds, but typically to clear fields before crops are planted. In 2017 agriculture organizations began using dicamba directly on plants and marketing seeds which were resistant to dicamba. The order says that dicamba has a significant drawback because it is volatile and can spread to other fields if applied during wind or temperature inversions. It also turns into a vapor during hot weather and can drift after application.

According to the order, the EPA approved conditional registrations for the three dicamba-based herbicides involved in the case in October of 2018. The National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America filed the lawsuit seeking a review of that decision.

The Ninth Circuit said they decline to “remand without vacatur” and leave the conditional registrations, as the EPA and Monsanto requested, ordering a remand without vacatur only in limited circumstances. The judges say they are aware of the practical effects of the ruling including the adverse impact on farmers who purchased dicamba resistant soybean and cotton seeds for the 2020 season.

“The Court itself noted in this order that it will place a great hardship on America’s farmers. This ruling implicates millions of acres of crops, millions of dollars already spent by farmers, and the food and fiber Americans across the country rely on to feed their families,” the EPA’s statement said.