The U.S. Court of Appeals for the Ninth Circuit denied a petition that sought to invalidate the Environmental Protection Agency’s cancellation and existing stocks order issued June 8. Congress has provided the certainty growers need in critical times – like planting season right now – by equipping EPA with the “existing stocks” authority it exercised in its June 3 guidance to growers.
EPA has defended its decision to allow farmers to continue to use three vacated dicamba herbicides -- XtendiMax, FeXapan and Engenia -- through the end of July. EPA argued that vacating the registrations does not technically affect the use of the now-unregistered herbicides. "Rescission of a pesticide registration (either by judicial or administrative action) only makes it illegal to distribute or sell that pesticide," EPA said. "It does not outlaw use of products already legally purchased."
Additionally, during its series of late-night orders June 19, the court granted requests from both CropLife America and a grower coalition to file an amicus brief. The grower request was filed June 16 by the American Soybean Assn. (ASA), American Farm Bureau Federation, National Cotton Council of America, National Association of Wheat Growers, National Corn Growers Assn. and National Sorghum Producers and supports EPA’s existing stocks decision. That brief highlighted the devastating consequences that would result if the petitioners' request was granted and growers could not use existing stocks.
An estimated 64 million acres of dicamba-tolerant seed is already in the ground — importantly, with no viable weed control alternative that can realistically be deployed over the next several weeks. Expected yield loss for soybeans and cotton is as high as 50%, with respective losses estimated at as much as $10 billion and $800 million, the grower groups noted in a release in announcing their joint filing of a request for the amicus brief.
In a statement, ASA said EPA’s long-established policy and practice under the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA) provides for an orderly management of the distribution, sale and use of existing stocks of a formerly registered pesticide product, including – as in this instance – in the context of vacatur.
“Immediately banning use of existing stocks of Xtendimax, Engenia and FeXapan would have financially devastating consequences on America’s soybean growers, who have invested an estimated $3.35 billion for soybean seed in 2020 and hundreds of millions of dollars more in herbicides, labor, fertilizer and other costs, expecting that over-the-top applications of dicamba would remain lawful,” ASA said.
“American growers and the public are fortunate that a proper administrative and judicial review framework exists. Farmers use countless FIFRA-regulated pesticide products, including herbicides, insecticides and fungicides. They make planting decisions and significant up-front financial investments based on the rules and regulations in place at the time plans are made. Soy farmers are dependent on those rules not changing in the middle of the game and are glad the court got it right in these orders,” ASA added in its news release.