Growers Object to Partial Dismissal in Dicamba Registration Lawsuit

On Tuesday, the American Soybean Association and Plains Cotton Growers Inc. filed an objection to the Environmental Protection Agency’s request asking the District of Columbia District Court for a partial dismissal of a lawsuit filed by the organizations against the registrations of three dicamba-based herbicides. The plaintiffs claimed that restrictions placed on dicamba use in the registrations were excessive. 

The restrictions on dicamba use in the EPA registration came after the court vacated the dicamba registration in 2020 at the behest of environmental groups. The EPA, dicamba producers, and other organizations argued that the herbicide was a central part of farmer’s plans because many farmers had planted specific dicamba-resistant crops. The court allowed it to be used through the season. The EPA quickly re-registered the dicamba products so that they could be used in the 2021 season with added restrictions disputed in the present lawsuit

In April, the EPA asked the court to dismiss count 2, which alleged that the buffer zones under the Endangered Species Act violate the Administrative Procedure Act, and count 4 which related to the EPA’s ruling that Dicamba use would not have an impact on endangered species.  The EPA in its motion alleged that the plaintiffs did not give the proper 60-day notice before filing a complaint and alleged that the complaint contained other flaws and that its “no effect” and “not likely to adversely affect” determinations were valid.  Additionally, the EPA alleged that the required buffer zones are needed to protect other plants from dicamba. 

In the plaintiffs’ filing they explained that regulations on herbicide applications are under the authority of the Federal Insecticide, Fungicide, and Rodenticide Act (FIRFA), and should be implemented through FIFRA labels and under FIFRA’s judicial review provision. Because of this, the plaintiffs claimed that the lawsuit they filed was not a citizen-suit and did not have the 60-day notice requirement under the Endangered Species Act. 

“While Growers’ case implicates ESA questions, those questions flow from how EPA implemented ESA considerations (species protections) through FIFRA control measures (herbicide application rules) to regulate herbicide end users,” the complaint explained. “Thus because any ESA issues inhere in — and were incorporated into — the FIFRA final actions before the Court, FIFRA supplies subject-matter jurisdiction.”

The plaintiffs also claimed that the Administrative Procedure Act gives additional subject-matter jurisdiction because the dicamba registration is reviewable under that act. The growers further noted that they did provide the notice to the EPA even though it should not be required. 

In their objection, the groups claimed that if the court agrees with the EPA and dismisses the counts they should be allowed to re-file the claims, because of the argument the EPA used for dismissal under the Endangered Species Act. The plaintiffs noted that when a complaint is dismissed because of the notice requirement it must be dismissed without prejudice. 

The plaintiffs are represented by Bradley Arant Boult Cummings LLP, the EPA and individuals associated with it are represented by the Department of Justice.