Courts continue to battle over whether farmers can use dicamba on soybean and cotton crops with ongoing challenges in response to a decision first issued on June 3. The U.S. Court of Appeals for the Ninth Circuit vacated the federal registrations of three of the four dicamba products that had previously been approved for use on dicamba-tolerant (DT) soybeans. This decision has caused tremendous uncertainty for soybean producers and pesticide dealers during an agronomically critical time of year.
In response to the decision, on June 8, 2020, the United States Environmental Protection Agency (EPA) issued a Final Cancellation Order that outlines specific circumstances under which existing stocks of the three affected dicamba products can be used. The cancellation order allowed farmers and commercial applicators permission to use product that was in their possession on June 3, the effective date of the Court’s decision. Use must be consistent with the product’s previously approved label. Product use must be discontinued after July 31.
However, on Thursday, June 11, the original plaintiffs in the lawsuit, including the Center for Food Safety, Center for Biological Diversity and National Farm Family Coalition, filed an emergency motion for motion for contempt against EPA given the June 8 order allows the limited continued use of the product inventory. It is unclear whether this is proper procedure or whether the challenge should have been brought as a challenge to the June 8, 2020 EPA Order.
In approving ongoing use of dicamba through July, the groups noted that EPA Administrator Andrew Wheeler cited what he asserted was the harm the court's ruling would have on farmers using dicamba. “But the court made clear that by wrongly approving use of the pesticide, the EPA is directly responsible for any harm to farmers—both those using dicamba and those whose crops have been damaged by it,” the groups said.
In a release Friday afternoon, Secretary of Agriculture Sonny Perdue said USDA supports the actions taken by the EPA to respond to the court’s order.
“At a time when the security of the food supply chain is paramount, the Center for Biological Diversity and its allies seek to cripple American farmers and further limit their ability to feed, fuel and clothe this nation and the world,” Perdue said. “The Ninth Circuit should not allow plaintiffs’ hostility against the American farmer to cloud the fact that the EPA’s actions follow both legal precedent and common sense.”
The USDA statement also noted that EPA’s order allowing for the limited use of existing chemical stocks already purchased follows EPA precedents from the Obama and Clinton Administrations when the registrations for other crop protection tools were cancelled.
On Friday, Corteva, Inc. filed a motion to intervene in the U.S. Court of Appeals for the Ninth Circuit case challenging the U.S. Environmental Protection Agency (EPA) registration of the dicamba herbicide marketed as XtendiMax Herbicide with VaporGrip Technology. BASF also filed an emergency motion to intervene because if its sale of BASF's Engenia herbicide.
Corteva was not a party to the lawsuit, and until June 3, the case appeared to involve only the XtendiMax registration. The Ninth Circuit Court nevertheless vacated in its June 3 decision the EPA’s registration of XtendiMax and Enginia herbicides, as well as Corteva’s registration for DuPont FeXapan with VaporGrip Technology.
Corteva said it is seeking to intervene to preserve its rights and to support the rights of customers to use the impacted dicamba weed control technologies. “We believe dicamba is an effective weed management tool for farmers when used according to the label. We also seek to preserve the role of the U.S. EPA to administer the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA), including granting or cancelling crop protection product registrations, for the benefit of agriculture and society,” Corteva said in a statement.
“Taking this action during the height of the application season gives no regard to the significant investments farmers have made in their businesses and leaves them without viable options for the growing season,” said Paul Rea, senior vice president, BASF Agricultural Solutions North America. “Farming is difficult even in the best of times and remains challenging. Making this decision now, when weed resistance continues to threaten farming operations, is disastrous for our customers. Farmers have counted on applications of dicamba-based products to control troublesome weeds for decades, and they continue to need these tools now and in the future.”
In the release from BASF, the statemented noted that Brad Kallenbach, a soybean farmer from Jamestown, North Dakota, has been using Engenia for three years. "It is a critical part of my operation to reduce the threat of resistant weeds and ensure a successful yield each season,” said Kallenbach. “My livelihood depends on tools like Engenia to tackle these challenges, and those of us that use it have dedicated a tremendous amount of time to ensure that we are doing it responsibly. The Court’s decision to vacate the Engenia registration leaves me with no good options for this year. It’s a steep cost that no grower under these circumstances was ready to bear.”