EPA Seeks Partial Dismissal in Dicamba Registration Lawsuit Filed by Farmers Associations

The Environmental Protection Agency (EPA) asked the District of Columbia District Court on Tuesday to dismiss two counts of a four-count complaint against its registration of the Dicamba herbicide; specifically, Count 2, purporting that the Endangered Species Act (ESA) buffer zones required in the registration violate the Administrative Procedure Act, and Count 4 relating to the EPA’s determination that Dicamba use would have “no effect” on endangered species or their habitats. 

In its filing, the EPA argued that Count 2 regarding ESA Buffers should be dismissed because the plaintiffs, the American Soybean Association and Plains Cotton Growers Inc., did not follow the proper procedures to file a complaint under the ESA by neglecting to provide 60-day notice. The defendant explained that the plaintiffs “mistakenly believe that certain 57 – to 310-foot buffer zones, measured from the edge of agricultural fields inward, which EPA included in those registrations to protect ESA listed species, are excessive.”  

The plaintiffs in Count 4 claimed that the determinations of “no effect” and “not likely to adversely affect” were valid, and said that these determinations are “essential to Growers’ ability to continue using dicamba safely, consistently, and legally.” They asked the court in the complaint for “regulatory certainty” that the determinations are valid to give growers confidence to plan their growing process with dicamba-resistant seeds and dicamba products. In response, the EPA said the court lacks subject matter jurisdiction, and cannot declare whether the EPA’s determinations of the effect of the dicamba registration are valid. 

The EPA did not move for the dismissal of Counts 1 and 3, which argued that application restrictions and Federal Insecticide, Fungicide, and Rodenticide Act buffers exceeded the EPA’s authority, respectively. The plaintiffs purported in their complaint, filed in November 2020, that because the EPA exceeded its authority when registering Dicamba, the decision should be remanded and reconsidered by the EPA. The farmers claimed that the buffers and restrictions in the registration are unnecessary, create hurdles or issues for farmers, and are not within the ESA’s powers to include.

The registration of dicamba has been considered in the courts before, after the 2018 registration was vacated last year by the Ninth Circuit the EPA re-registered the herbicide using dicamba with additional regulations for use with soybean and cotton crops. Environmental Organizations purport that its likelihood of spreading to crops and plants outside of the field means the herbicides are harmful to the environment, but advocates of the herbicides purport that it is part of a useful growing procedure and is necessary as weeds become resistant to other herbicides. 

Dicamba-based herbicides are produced by BASF Corporation, Syngenta Crop Protection LLC, and Bayer Cropscience LP. Each of these companies are intervenors in the present lawsuit in favor of the EPA, they filed individual answers to the complaint on Tuesday.  

The plaintiffs are represented by Bradley Arant Boult Cummings LLP, the EPA and individuals associated with it are represented by the Department of Justice, BASF is represented by Beveridge & Diamond P.C. and DLA Piper LLP, Bayer is represented by Latham & Watkins LLP, and Syngenta is represented by Arent Fox LLP