Why a federal court vacated EPA registration of three dicamba herbicides

Weed control plans for dicamba-tolerant soybeans were dashed on June 3 when the U.S. Court of Appeals for the Ninth Circuit vacated conditional registrations for Xtendimax, Engenia, and FeXapan. In this article, Kristine Tidgren, director for the Center for Agricultural Law and Taxation at Iowa State University explains what led to the Court’s opinion. 

On June 3, 2020, the United States Court of Appeals for the Ninth Circuit vacated the Environmental Protection Agency’s (EPA) conditional registrations for three dicamba-based herbicides: XtendiMax (Bayer, formally Monsanto), Engenia (BASF), and FeXapan (Corveta Agriscience, formally DuPont). National Family Farm Coalition v. EPA, No. 19-70115 (9th Cir. June 3 2020). 

The issuance of the mandate that followed the opinion appears to mean that – unless the mandate is stayed – use of these herbicides is no longer legally authorized. We are waiting for a statement from the EPA regarding its next steps. This is key to assessing the impact of this ruling upon the many farmers with dicamba-tolerant soybeans in the ground and dicamba-based herbicide in the shed. This ruling, of course, impacts cotton growers as well.

This lawsuit did not involve Syngenta’s more recently registered Tavium Plus VaporGrip system.

Multiple Errors 

In reaching this monumental decision, the Court found that the EPA made multiple errors in granting the three conditional registrations in October of 2018 (each for a two-year period). The Court held that the agency violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) by substantially understating the risks of dicamba and in “entirely fail[ing] to acknowledge other risks.”  

Specifically, the Court found that the EPA substantially understated the amount of dicamba-tolerant seed acreage that had been planted in 2018, and, correspondingly, the amount of dicamba herbicide that had been sprayed on post-emergent crops.

Further, the Court determined that EPA ignored record evidence that “clearly showed that dicamba damage was substantially under-reported.” 

The Court also found that “EPA refused to estimate the amount of dicamba damage, characterizing such damage as ‘potential’ and ‘alleged,’ when record evidence showed that dicamba had caused substantial and undisputed damage.”

In addition to these errors, the Court determined that EPA “entirely failed to acknowledge” three other risks.

1. The Court said that EPA did not acknowledge evidence showing the high likelihood that increasingly restrictive label requirements would not be followed. Instead, the agency relied on the assumption that the label’s mitigation measures would limit off-field movement of over-the-top dicamba. The Court noted that the restrictions on the 2016 and 2017 labels were already difficult, if not impossible, to follow for even conscientious users and that the restrictions on the 2018 label were even more onerous.

2. The Court also scolded EPA for “entirely fail[ing] to acknowledge the substantial risk that the registrations would have anticompetitive economic effects in the soybean and cotton industries.”

3. Finally, the Court stated that the EPA "entirely failed to acknowledge" the risk that over-the-top dicamba use would “tear the social fabric of farming communities.” The Court held that these so-called “fundamental flaws” in the EPA’s analysis were substantial. The Court stated that it was aware of its decision's adverse impact on growers who have already purchased dicamba products for this year’s growing season and recognized that they were now placed in a difficult situation through no fault of their own.  “However,” the Court continued, “the absence of substantial evidence to support the EPA’s decision compels us to vacate the registrations.”

On June 5, the Iowa Department of Agriculture and Land Stewardship stated in a press release that it "has not issued a stop sale order and will continue operating under the current pesticide program until it receives guidance from the EPA.

The Department does not anticipate taking enforcement action against those who otherwise appropriately purchase, sell, or use these products in the interim. This enforcement decision may change immediately based on further guidance from the EPA."