Ag interests back appeal of dicamba ban

15:29 PM | August 6, 2020 | J R Pegg

US farm groups are rallying behind the pesticide industry’s bid to overturn a decision by the US Court of Appeals for the Ninth Circuit to vacate the registrations of three dicamba herbicides. They argue that the products are vital to soybean and cotton farmers and that the Court has overstepped its authority.  

The agricultural organizations filed a brief last week backing the request by Bayer, BASF and Corteva Agriscience for the full appellate court to review and reverse the ruling made by a three-judge panel in June.

“The ‘over-the-top’ dicamba-tolerant technology is critical for growers – it arms them with the tools they need to meet a pressing challenge to their soybean and cotton crops: weeds that are resistant to growers,” according to the American Farm Bureau Federation, American Soybean Association, National Cotton Council of America, National Association of Wheat Growers, National Corn Growers Association and the National Sorghum Producers.

The groups echo industry concerns about the judicial review of the registrations and argue that the Ninth Circuit panel misread the relevant standard laid out by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).

The Court’s order “simply substitutes its own judgement for the EPA’s and vacates all three registrations without affording the EPA’s fact-intensive findings or expertise any deference”, according to the ag groups.

Vacatur and cancellation

The three-judge panel issued the contested order on June 3rd to vacate the three dicamba registrations – Bayer’s XtendiMax, Corteva’s FeXapan and BASF’s Engenia – after finding that the EPA had failed to fully consider the risks of allowing the herbicides to be sprayed on post-emergent dicamba-tolerant cotton and soybeans in 34 states.

The Court sided with environmentalists and farm worker advocates who challenged the EPA’s approval amid concerns about damage from dicamba to millions of acres of non-target crops.

In a scathing decision, the panel concluded that the EPA had violated the FIFRA as the Agency had “substantially understated the risks it acknowledged and failed entirely to acknowledge other risks” when it approved the over-the-top (OTT) uses of the pesticides.

The Court also found that the EPA’s 2018 revised registrations had done little to address concerns about drift and volatility and said that the product labels were “difficult if not impossible to follow even for conscientious users”.

The EPA responded by issuing a cancellation order for the three pesticides that permitted farmers to use some 4 million gallons (15 million liters) of existing stocks until July 31st. More than 60 million acres (24 ha) of dicamba-treated crops are in the ground and the Agency sided with ag interests who had argued that it would have been unfair on farmers to bar uses this growing season.

The petitioners – led by the Center for Food Safety – asked the Court to block the Agency from allowing any continued OTT use dicamba, but the panel rejected that request last month as well as a motion by BASF to recall its June 3rd order.

In their backing of an en banc review, the ag groups say that the vacatur order had sent “shock waves through American agriculture” at the “worst possible time for American farmers – right in the middle of the growing season”.

The EPA’s subsequent order helped, they contend, but the “panel opinion affects the predictability, efficiency, and sustainability of growers’ farming operations and their ability to rely on predictable and science-based regulatory decision-making and governmental oversight”.

The farm and commodity groups say that the panel ignored concerns that the underlying lawsuit had originally just challenged XtendiMax and like BASF and Corteva, “America’s farmers were not give the required notice that the registration orders for Engenia and FeXapan were being challenged.”

Substantial evidence

The Court should also grant en banc review to “disavow the panel opinion’s misconception and misapplication of FIFRA’s ‘substantial evidence’ standard,” they argue, criticizing the panel for faulting the EPA for not considering the social and economic harm from the registrations.

“FIFRA does not dictate precisely what costs and benefits the EPA must expressly consider in making its registration decisions or how it must balance them,” the ag groups say. “Nor does FIFRA authorize this Court to cherry pick certain evidence, ignore conflicting evidence, and simply reweigh the EPA’s balancing of the broad statutory factors.”

It is not clear how the social and economic concerns voiced by the panel “fall within FIFRA’s scope of review as opposed to other bodies of law, namely tort and antitrust”, according to the amicus brief.

The continued legal wrangling comes as the EPA is considering whether to re-register the three products – the now-vacated registrations were conditional and set to expire in November 2020.

Given the popularity of the dicamba-tolerant crops it seems likely the EPA will find a way to re-approve uses and the Agency is also considering Bayer’s request to approve dicamba-tolerant maize.

But the Agency is facing pressure from state officials and some farmers to further tighten restrictions on OTT uses, particularly temperature cut-offs as volatility and drift risks increase in hotter weather.