On June 3, 2020, the United States Court of Appeals for the Ninth Circuit canceled conditional Environmental Protection Agency (EPA) registrations for three dicamba-based herbicides: XtendiMax (Bayer, officially Monsanto), Engenia ( BASF) and FeXapan (Corveta Agriscience, formerly DuPont). National Family Farm Coalition v. EPA, n ° 19-70115 (9th Cir. June 3, 2020).
The issuance of the warrant following the notice appears to mean that – unless the warrant is suspended – the use of these herbicides is no longer legally permitted. We are awaiting a statement from the EPA regarding its next steps. This is essential to assess the impact of this decision on the many farmers with dicamba tolerant soybeans in the soil and a dicamba herbicide in the hangar. Of course, this decision also affects cotton producers.
This lawsuit did not involve Syngenta’s more recently registered Tavium Plus VaporGrip system.
In arriving at this monumental decision, the Court found that the EPA had made multiple errors in granting the three conditional registrations in October 2018 (each for a period of two years). The court found that the agency had violated the Federal Insecticide, Fungicide and Rodenticide Law (FIFRA) by significantly underestimating the risks of dicamba and “completely failing.”[ing] to recognize other risks. ”
More specifically, the Court found that the EPA significantly underestimated the amount of dicamba-tolerant seed acreage that was planted in 2018 and, therefore, the amount of dicamba herbicide that was sprayed on postemergence crops .
In addition, the Court determined that the EPA disregarded evidence that “clearly showed that the damage caused by dicamba was significantly underreported”.
The Court also found that “the EPA refused to estimate the amount of damage caused by dicamba, describing it as” potential “and” presumed “, when evidence showed that dicamba had caused substantial and undisputed damage. ”
In addition to these errors, the Court determined that the EPA “did not fully recognize” three other risks.
- The Court said the EPA did not recognize evidence showing the high likelihood that the increasingly restrictive labeling requirements would not be met. Instead, the agency relied on the assumption that label mitigation measures would limit out-of-scope movement of dicamba over the summit. The Court found that the restrictions on the 2016 and 2017 labels were already difficult, if not impossible, for even conscientious users to follow, and that the restrictions on the 2018 label were even more expensive.
- The Court also berated the EPA for “total failure[ing] recognize the significant risk that registrations may have anti-competitive economic effects in the soybean and cotton industries. “
- Finally, the Court said that the EPA “did not recognize at all” the risk that excessive use of dicamba “would tear the social fabric of farming communities”.
- The Court held that these so-called “fundamental flaws” in the EPA analysis were substantial. The Court said it was aware of the negative impact of its decision on producers who have already purchased dicamba products for this year’s growing season and recognized that they were now placed in a situation difficult without any fault on their part. “However,” continued the court, “the absence of substantial evidence in support of the EPA decision forces us to cancel the registrations. “
On June 5, the Iowa Department of Agriculture and Land Stewardship said in a press release that it “has not issued a stop sale order and will continue to operate in under the current pesticide program until it receives advice from the EPA.
The Department does not plan to take coercive action against those who would otherwise purchase, sell or use these products appropriately in the interim. This enforcement decision may change immediately based on new guidance from the EPA. “