Pared Down Complaint Filed in EPA Dicamba Suit

After the Environmental Protection Agency (EPA) moved to dismiss two counts of the farm trade associations’ claims in their four-count complaint earlier this month, the American Soybean Association and Plains Cotton Growers Inc. filed an amended complaint in the District of Columbia District Court. The lawsuit concerns the associations’ challenge to the EPA’s October 2020 registration of the herbicide dicamba.

According to Tuesday’s filing, “some aspects of the registration decision are problematic for Growers, who depend on reasonable, consistent access to dicamba for use on [dicamba-tolerant] soybeans and cotton.” The original complaint challenged the EPA’s application restrictions, Endangered Species Act (ESA) buffers, Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) buffers, and sought an order judicially validating the ESA’s “no effect” findings on certain ESA listed species and critical habitat.

The new complaint first takes issue with the ESA’s application restrictions. The plaintiffs claim that they harm farmers “by imposing unreasonable and expensive growing and herbicide conditions on Growers and their farmland.” The plaintiffs request an order vacating the EPA’s restrictions and remanding to the agency for reconsideration.

In addition, the trade associations seek review of the ESA’s FIFRA spray buffer restrictions. The filing claims that the agency’s decision oversteps its regulatory authority and is unnecessary to comply with the statute.

In their motion to dismiss, filed April 6, the EPA and other federal defendants claimed that the plaintiffs “mistakenly believed” that certain buffer zones, which the EPA included in its registrations to protect ESA-listed species, were excessive. Too, the EPA asserted that its “no effect” determinations were unchallengeable because the court lacked jurisdiction thereover. The latter claim is absent from the plaintiffs’ revised complaint.

The farm trade associations are represented by Bradley Arant Boult Cummings LLP, and the EPA and other federal defendants by the U.S. Department of Justice.