Petitioners Claim BASF and DuPont Should Have Limits in Dicamba Case

Petitioners in the Ninth Circuit case addressing the canceled registration of three dicamba products argue that two recent intervenors in the case, BASF and E.I. du Pont de Nemours (EID), should have limited access to the case and ask that the intervenors file joint petitions and only address certain questions. 

The petitioners, including the National Family Farm Coalition, the Center for Food Safety, and the Center for Biological Diversity, filed their response on Tuesday to the intervenors’ motion to recall the mandate. The court requested the response so it could petition for a rehearing to consider if FeXapan and Engenia were properly included in the dicamba registration decision. 

They alleged that the lost sales BASF claims would result from the court’s vacatur of its dicamba product, Engenia, “rings hollow” because of the company’s timing alleging the loss of sales claimed is a fraction of what the company has already sold this year. The plaintiffs also argued BASF cannot claim the harm of its customers because it does not represent them. 

“If the Court recalls the mandate, it should be for the limited and express purpose sought, allowing BASF and Corteva to file a joint petition for rehearing on the issue of whether the panel erred in including their dicamba products in the scope of the decision,” the petitioners said, saying the court should limit the companies to one petition for review on only that question. 

E.I. du Pont de Nemours, represented by Crowell & Moring, and BASF Corporation, represented by Hogan Lovells, filed responses to the petitioners’ argument stating that their participation in the court proceeding should not have limits. 

EID argued that its motion to intervene was not given with limitations and that the company has “full party status” in the case. The company’s response said they should not be limited by content or asked to file jointly. 

“EID has a unique property interest in its FeXapan registration that is distinct from the interests of every other Respondent party, including BASF.  It should thus be permitted, consistent with its status as a party to this litigation, to submit the filings and raise the arguments it deems necessary to advocate for its rights and interests,” EID’s response states, noting that it intends to file joint briefs when possible. 

BASF pointed out that the plaintiffs did not oppose or address the relief requested by BASF in their motion, they only “offer  two  incorrect  and  irrelevant assertions about  the magnitude of the harms caused by the immediate issuance of the mandate.” BASF also claims it was granted full participation as an intervenor, not participation on specific issues.