Ninth Circuit Denies En Banc Hearing in Dicamba Lawsuit

The Ninth Circuit said on Monday that it is denying a request to hold an en banc rehearing after the court ruled to cancel the registration of three dicamba herbicides. The case was initiated between environmental groups, including the National Family Farm Coalition and the Environmental Protection Agency (EPA).

The order stated that “Judges McKeown and W. Fletcher have voted to deny the petitions for rehearing en banc, and Judge Hawkins so recommends. The full court has been advised of the petitions for rehearing en banc, and no judge of the court has requested a vote on whether to rehear the matter en banc.”

Despite the court’s denial of the hearing, another order filed on Monday allowed CropLife America and other farming associations to file amicus curiae briefs in support of the petition for the hearing.

Intervenors in the case, Bayer, BASF Corporation, and E.I. Du Pont de Nemours and Company filed the request for an en banc hearing in July, after the court canceled the registration for the companies’ individual over-the-top dicamba herbicides.

The court also entered a mandate stating that the court’s original judgment, given on June 3, will take effect immediately. With the petition for an en banc hearing denied, the companies are no longer able to petition for the use of their products in the appellate court and will need to appeal to the Supreme Court if they want the matter to be considered further.

According to Brownfield Ag News, each of the companies is “assessing their options for appeal.”

Bayer said in a statement “we strongly disagree with the court’s June 3 ruling. We believe our request for rehearing should have been granted for several reasons, including that the court disregarded the EPA’s expert scientific judgements. Indeed, the EPA conducted an extensive review and considered all relevant science prior to issuing the registration for XtendiMax.”

A statement from BASF said they also disagree with the court’s decision. “We remain committed to ensuring growers have access to the safe and effective crop protection solutions they have come to rely on, including Engenia herbicide. BASF continues to pursue EPA re-registration of Engenia for use during the upcoming seasons,” the company said in a statement