Judges Rule in Favor of Dicamba Producers, EPA in Emergency Order Responses

Judges of the Ninth Circuit ruled against an emergency motion on Friday asking for the Environmental Protection Agency (EPA) to be held in contempt for their response to the Ninth Circuit Court’s decision to vacate three dicamba products. For now, dicamba over the top products can be used through July as the EPA cancellation order states and the court will not enforce its vacatur before the growing season. 

The judges did say the petitioners can “file an oversized reply brief” for their emergency motion, so the debate over whether the products should be used this year is not over.

The EPA and Monsanto filed oppositions to the emergency order arguing farmers who had planned or planted their crops for the year using the products should be able to continue. Other amicus curiae briefs from agriculture companies supported use of the products through this season. 

“Congress has provided for the certainty needed by growers in critical times – like planting season right now – by equipping EPA with the ‘existing stocks’ authority it exercised in its June 3 guidance to growers,” the American Soybean Association (ASA) said about the court’s decisions in a press release

The judges also filed an order on the same day allowing E.I. du Pont de Nemours and Company, producer of FeXapan, and BASF, producer of Engenia, to intervene in the case. The Petitioners filed a response to their motion alleging they should not be allowed to intervene because they waited too long, only filing to intervene after the plaintiffs’ emergency order. Monsanto, producers of Xtendimax had already been involved in the case as an intervenor. 

BASF said in a press release that it is pleased their emergency motion was approved and that use of existing stocks will continue. “The EPA’s decision to allow the use of existing stocks will help to save this year’s crops and save farmers’ millions of dollars in their investment in our product,” BASF said. The company said they also seek a recall of the vacatur, saying they plan to appeal the initial decision and hope to re-register Engenia.