A coalition of national trade associations that represent farmers, ranchers and their families nationwide urged the U.S. Court of Appeals for the Ninth Circuit to reject a call from non-government organization (NGO) consumer and environmental groups to invalidate the Environmental Protection Agency’s existing stocks order for three dicamba products whose registrations were immediately vacated by the court earlier this month.
In response to the decision, EPA issued a final cancellation order on June 8, 2020, 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, and product use must be discontinued after July 31.
On 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 contempt against EPA, given that the June 8 order allows the limited continued use of the product inventory.
The American Farm Bureau Federation, American Soybean Assn., National Cotton Council of America, National Association of Wheat Growers, National Corn Growers Assn. and National Sorghum Producers have filed an amicus brief supporting EPA’s position against the NGO petition that seeks to invalidate EPA’s existing stocks order for dicamba and hold the agency in contempt, citing the catastrophic consequences that could result if the NGO request is granted, the groups noted in a joint statement.
The grower coalition’s brief, filed June 16, makes a case for farmers caught in a highly frustrating and costly situation amid prime planting season and the narrow weed control window. “Neither a midseason cancellation nor a vacatur un-plants a seed, retroactively tills a field or clears a storehouse of products purchased for lawful use under the prior registration,” the groups wrote.
Immediately banning the use of existing stocks of Xtendimax, Engenia and FeXapan would financially devastate America’s soybean and cotton growers, who have invested an estimated $4.28 billion in seed and hundreds of millions on herbicides, the commodity groups noted. 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.
If the court chooses to grant the emergency motion of the NGOs, it will add financial insult to sustained injury, the grower groups added. “The economic damage that would be caused would exacerbate an already tenuous economic situation for America’s farmers, who face depressed market prices and increased uncertainty in commodity markets due to ongoing trade tensions and the COVID-19 pandemic,” the news release stated.
Further, granting the petitioners’ requested relief would: (1) plunge the agricultural community back into the widespread uncertainty and confusion it experienced in the period between the court’s vacatur and EPA’s cancellation order and, even more critical to the long-term viability of the agriculture industry, (2) set a damaging precedent, short circuiting the proper administrative and judicial review framework that Congress prescribed for existing stocks under the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA). Farmers use countless FIFRA-regulated pesticide products, including herbicides, insecticides and fungicides. “This decision could set a disruptive precedent with profound, long-term consequences for all farmers and ranchers for years to come,” the coalition said.
Investments and planting decisions have been made, and most planting has been completed — all based on the realistic expectation that over-the-top application of these dicamba products would be possible through the growing season. “The court should respect EPA’s expertise in managing existing stocks of these formerly registered pesticide products and deny the emergency motion pending against EPA,” the statement concluded.
National Association of State Departments of Agriculture (NASDA) chief executive officer Dr. Barb Glenn said the litigation threatens the stability provided by EPA’s cancellation order. “Without EPA’s permission to use the remaining stock of these products, farmers would be left in the middle of the growing season with a dire choice between leaving crops entirely vulnerable or substituting the vacated products with different pesticides that may not be as effective. In addition, EPA mandates all pesticides must be applied according to the label,” Glenn said.
She added that NASDA members serve at the intersection of supporting farmers and protecting consumers and the environment. “Our farming community is suffering from plenty of pre-existing conditions. Farmers need access to this tool to ensure an ample U.S.-produced food supply during the coronavirus pandemic,” Glenn said.