Petitioners Argue Dicamba Intervention is Too Late

Conservation groups allege that BASF and E.I. du Pont de Nemours and Company, also known as Corteva, should not be allowed to intervene in the Ninth Circuit dicamba case because their request was not timely. The petitioners, National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network, argued that the companies had a year and five months to intervene in the case but did not take action until now.

“Proposed Intervenors are far too late. Huffing and puffing aside, Proposed Intervenors have failed to identify a single interest that is not adequately represented by EPA (or Intervenor Monsanto) at this juncture,” the opposition stated. “Proposed Intervenors have been fine with letting EPA do their bidding throughout the course of this case, they should not be allowed to participate now only to cause delay and prejudice to Petitioners.”

They claimed the herbicide companies only took action after the plaintiffs filed their motion to enforce the court’s order immediately, claiming the EPA was in contempt of the ruling for allowing use of the products through July 31.

The herbicide manufacturers moved to intervene in the case on June 12 claiming that they had a right to be involved in the case as the decision has a large impact on the companies and their customers. BASF, represented by Beveridge & Diamond, manufactures Engenia and Corteva, represented by Crowell & Moring LLP, manufactures FeXapan. Both pesticides were vacated by the court in early June along with Monsanto’s Xtendimax.

“Proposed Intervenors slept on their rights to intervene, even though they had every reason to know that this Court’s adjudication of EPA’s 2018 registration decision could affect the registration basis for their pesticide products,” the groups’ opposition to their motion to intervene states.

The groups ask for the court to not allow BASF and Corteva to intervene in the case, and to disregard their proposed opposition to the petitioner’s emergency motion to enforce the vacatur.