US EPA hit with lawsuit challenging dicamba registrations

10:34 AM | December 24, 2020 | JR Pegg

The US EPA’s decision to re-register the herbicide, dicamba, for over-the-top use has prompted a coalition of environmentalists and farmers to file a suit, alleging – once again – that the Agency has failed to fully consider the potential risks from the herbicide.

Filed in the US Court of Appeals for the Ninth Circuit, the lawsuit comes as little surprise – the same four groups successfully sued the EPA to vacate prior registrations for the dicamba herbicides and promised to challenge the new registrations for Bayer’s XtendiMax, BASF’s Engenia and Syngenta’s Tavium.

The EPA issued new five-year registrations for the products in October, allowing the herbicides to be sprayed on dicamba-tolerant cotton and soybeans in 34 states. The Agency imposed new restrictions to try and mitigate drift concerns – including nationwide cut-off dates, increased buffer zones and use of a pH buffering agent to lower the volatility of the pesticides.

But those mitigation measures fall far short, given the “unprecedented” damage to millions of acres of non-target soybeans, orchards, gardens, and other crops from the use of dicamba-based herbicides over the past several years, according to the Center for Food Safety, Center for Biological Diversity, National Family Farm Coalition and Pesticide Action Network.

New approvals, same concerns

The coalition says that the registrations suffer from many of the same shortcomings that prompted a three-judge panel of the Ninth Circuit in June to vacate prior approvals of the dicamba products.

In a scathing decision issued in June, the panel found that the EPA had violated federal pesticide law as the Agency had “substantially understated the risks it acknowledged and failed entirely to acknowledge other risks” when it issued 2018 registrations that allowed the over-the-top uses of the dicamba products.

“Less than six months ago, the Ninth Circuit resoundingly rejected Monsanto’s and EPA’s arguments about this pesticide, detailing its substantial drift harms,” said CFS legal director George Kimbrell. “Rather than do what the law and science requires, the Trump administration has again unlawfully promoted pesticide corporations’ profits over protecting the interests of farmers or the environment.”

The new complaint alleges that the EPA had rushed through the approvals without finding the that the herbicides would not pose “unreasonable adverse effects” to the environment, or concluding that legal uses would not pose undue risks to endangered species.

The groups want the Court to vacate the registrations, alleging that the EPA had violated the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the Administrative Procedure Act (APA) and the Endangered Species Act (ESA). They argue that the EPA did not meet the FIFRA’s risk standards, nor did it complete the required ESA consultation with the federal wildlife agencies.

The plaintiffs also contend that the Agency failed to provide the APA-mandated notice and comment opportunity for a policy embedded in the registration decision that makes it nearly impossible for states to impose their own restrictions on use of the dicamba products.

Growers wary

The lawsuit is the second to target the new registrations. Last month, cotton and soybean growers filed a complaint alleging that some of the EPA’s mitigation measures were unwarranted and not supported by science. The American Soybean Association and the Texas-based Plains Cotton Growers contend that the EPA overstepped its authority when it imposed nationwide cut-off dates for use of the dicamba products and are also unconvinced by the expanded buffer zones.

But the lawsuit – filed in the US District Court for the District of Columbia – also calls on the Court to uphold the bulk of the registrations and ensure that the products can remain on the market. Despite concerns about the new registrations, the dicamba cropping system is popular with many growers and an estimated 60 million acres (24 million ha) of dicamba-tolerant cotton and soybeans were planted last year.