Ninth Circuit revokes dicamba registrations in the US prompts search for alternatives

Date:06-09-2020

By David Murray

A three-judge panel of the Ninth Circuit issued a ruling June 3 that revoked the U.S. Environmental Protection Agency’s two-year registration of three formulations of the weed-killing pesticide dicamba.

Writing for the panel, Judge W. Fletcher said the EPA failed to adequately assess the risks that “dicamba drift” posed for the environment, as it was required to do. The agency drastically underestimated the extent of its use and accepted industry information that was unverified or unreliable, the judge said. Those failures alone provided enough justification to revoke the registrations.

The ruling came in response to a petition by several organizations, including the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity and Pesticide Action Network North America.

He wrote that instead of making its own determinations, EPA relied on data supplied by Monsanto (Bayer) from its own field tests that were either unreliable or incomplete, or both. It underestimated the amount of dicamba use, and therefore the potential harm to neighboring crops. Because of that failure, Fletcher wrote, “We hold that the EPA’s Oct. 31, 2018, decision, and the conditional new-use registrations of XtendiMax [Monsanto/Bayer], Engenia[BASF], and FeXapan [Corteva] for use on DT soybean and cotton that are premised on that decision, violate FIFRA [the Federal Insecticide, Fungicide, and Rodenticide Act].”

Fletcher declined to rule on any possible impacts of dicamba use to endangered species, as the petitioners had asked, saying the findings about insufficient data were enough to justify the revocation. He faulted EPA for imposing costs on farmers who felt compelled to buy dicamba products to avoid damage from drift from neighboring fields, calling that pressure an “anti-competitive effect” of the registrations. He also blamed it for “tear[ing] the social fabric of farming communities” by fostering tension between dicamba users and neighboring farmers whose crops were damaged by drift. The University of Arkansas has documented damage from dicamba drift, and hundreds of complaints have been received by state agriculture boards—complaints that Fletcher said EPA ignored. Farmers have complained that widespread dicamba use has bred resistant “superweeds.”

“Today's decision is a massive win for farmers and the environment,” said George Kimbrell of the Center for Food Safety, lead counsel in the case. “It is good to be reminded that corporations like Monsanto and the Trump administration cannot escape the rule of law, particularly at a time of crisis like this. Their day of reckoning has arrived.”

“For the thousands of farmers whose fields were damaged or destroyed by dicamba drift despite our warnings, the National Family Farm Coalition is pleased with today's ruling," said National Family Farm Coalition president and retired dairy farmer Jim Goodman.

Marcia Ishii-Eiteman, senior scientist at Pesticide Action Network said, "EPA, Bayer and Corteva knew all along that the highly drift-prone herbicide, dicamba, would cause grave harm to farmers, their livelihoods, crops, surrounding rural communities and landscapes. Unfortunately, we have already seen three seasons of devastation that could have been avoided had EPA done its job.”

Calls for appeal

The ruling effectively halts dicamba use nationwide for over-the-top), post-emergent applications. In combination with other recent legal challenges to dicamba use, it could put the herbicide’s future in question. The three named dicamba formulas were set to be re-registered in December of this year; information was being gathered for that decision.

The ruling puts soybean and cotton farmers who have already suffered from trade disputes and the economic contraction of the coronavirus in a tough spot. “We acknowledge the difficulties these growers may have in finding effective and legal herbicides to protect their DT crops if we grant vacatur (vacating the registrations),” said the court. “They have been placed in this situation through no fault of their own. However, the absence of substantial evidence to support the EPA’s decision compels us to vacate the registrations.”

Producer groups upset

Reactions to the ruling were swift. “Producers need all the tools in their toolbox to produce the world’s food, fuel, and fiber, and [the U.S. Department of Agriculture] re-affirms its support for EPA’s science-based process for assessing and managing ecological risks, balanced against the agricultural and societal benefits of crop protection tools,” said Sec. of Agriculture Sonny Perdue. USDA stands ready to assist its federal partners in meeting that goal. Farmers across America have spent hard earned money on previously allowed crop protection tools. I encourage the EPA to use any available flexibilities to allow the continued use of already purchased dicamba

products, which are a critical tool for American farmers to combat weeds resistant to many other herbicides, in fields that are already planted. Unfortunately, the Ninth Circuit has chosen to eliminate one of those tools.”

The National Corn Growers Association said, “NCGA urges the EPA to immediately appeal this ruling and obtain a stay of this overreaching court order. This decision to remove a weed control option, especially in the middle of the season, adds yet another challenge to an already difficult time and sets a concerning precedent. Farmers have invested in previously allowed dicamba products, EPA should offer clarifying guidance and allow the use of existing stocks. NCGA is working closely with its partners and the EPA to understand the full ramifications of this decision and what options lie ahead for the future of the product.”

Legally, the EPA could appeal the ruling to the U.S. Supreme Court, ask the judges to review it or request an en banc decision by all members of the Ninth Circuit. At this writing, there was no announcement on which, if any, of these options it might pursue.

Soybean, cotton farmers search for alternatives

As farmers searched for legal alternatives to apply to post-emergent plants, observers speculated about shortages of alternative pesticides. Syngenta noted in a June 4 statement that its Tavium product, which includes dicamba, was not registered at the time of the lawsuit and was thus not included in the order. Tavium can only be legally applied to soybeans in the V4 growth stage. Syngenta said it would continue to monitor the situation.

State regulators are seeking to clarify the limits of the ruling and how it will be enforced. In a statement posted June 4, North Dakota Agriculture Commissioner Doug Goehring said, “This ruling could not have come at a worse time for North Dakota farmers and dealers. We are monitoring the developments surrounding this unsettling decision closely and expect an immediate appeal of the ruling along with a request for an emergency stay, which if granted would allow the continued use of the products while the appeal is being heard in court. Sadly, the continued use of these dicamba products for the 2020 season now depends on the outcome of the request for an emergency stay." The decision to grant a stay could take weeks and would only allow a narrow window for application, if at all.

Until such legal process is concluded, the Nebraska Department of Agriculture will continue to allow utilization.  “The Nebraska Department of Agriculture has not issued a stop sale order and will enforce the sales and applications of these products as they are currently registered in Nebraska,” said Director Steve Wellman. 

Chris Novak, president and CEO of CropLife America, a trade association of agribusiness companies, said, “We are disappointed with the ruling by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit that vacates current U.S. registrations of certain low-volatility dicamba products. We continue to support the science-based decisions made by career scientists at the U.S. Environmental Protection Agency who have worked over decades under multiple administrations to ensure that pesticides are safe for the public and environment when used according to the label. This decision comes in the middle of planting season in the U.S. and could have devastating consequences for farmers, who have already made plans to protect their crops. We hope that EPA’s next steps will reflect the needs of American farmers for regulatory certainty and science-based decision-making. 

Bayer, BASF assessing next steps

The American Soybean Association said it is “disappointed by the Ninth Circuit’s decision to overturn the Environmental Protection Agency’s dicamba registration approval. Farmers rely on EPA and the regulatory process to effect science-based determinations that allow them to use safe, efficient tools to responsibly manage their farms. ASA is reviewing the court’s decision to fully determine its repercussions on the soy industry but regrets that the future of dicamba—a very effective weed management product when used responsibly—is on the line.”

In a statement, Bayer said, “We strongly disagree with the ruling and are assessing our next steps. … Depending upon actions by the EPA and whether the ruling is successfully challenged, we will work quickly to minimize any impact on our customers this season. Our top priority is making sure our customers have the support they need to have a successful season. The ruling pertains specifically to the EPA’s 2018 registration decision, which expires in December 2020. We are currently working to obtain a new EPA registration for XtendiMax for the 2021 season and beyond—we hope to obtain the new registration by this fall. Know that Bayer stands fully behind XtendiMax. We are proud of our role in bringing innovations like XtendiMax forward to help growers safely, successfully, and sustainably protect their crops from weeds. We will continue working with the EPA, growers, academics, and others to maintain long-term access to this important tool.” Bayer said it still hoped to register XtendiMax for 2021.

Chemical and seed company BASF, maker of the dicamba formulation Engenia, said, “The order issued on June 3 by the United States Court of Appeals for the Ninth Circuit vacating the registration of Engenia herbicide and two other products is unprecedented and has the potential to be devastating to tens of thousands of farmers. These farmers have counted on over-the-top applications of dicamba-based products, including Engenia herbicide, to control resistant weeds across tens of millions of dicamba-tolerant soybean and cotton acres. Time is of the essence. Farmers have less than a month to protect millions of acres under threat from resistant weeds that could lead to significant revenue loss in an already challenging season. We are currently reviewing the order and are waiting on further direction from the U.S. EPA on actions they will take as a result of this order. We will use all legal remedies available to challenge this Order and we remain committed to serving our customers with safe and effective crop protection solutions, including Engenia herbicide.”

Dicamba’s legal troubles

The judge’s nationwide ban is only the latest of dicamba’s legal woes. The effective weed-killer has been around for decades. Dicamba works by mimicking plant hormones called auxins, which stimulates plants to grow in uncontrolled ways until they die. It can damage or kill not only targeted weeds but a wide variety of row and tree crops. Other crops, like corn and wheat, are naturally resistant.

Dicamba’s use accelerated several years ago when Monsanto, BASF and DuPont introduced new formulas alleged to be less likely to “volatilize” or evaporate and spread by wind drift onto neighboring crops.  The new formula was supposed to be used along with seeds genetically engineered to resist it, but Monsanto released its dicamba-tolerant seeds before its new formula was ready. Farmers used the new seeds with the older formulations, which continued to drift and damage neighboring crops.

That was the basis of a civil award in February of $265 million by a Cape Girardeau, Missouri, jury to peach farmer Bill Bader, who alleged dicamba drift damage to his peach crops. The award included $15 million in compensatory damages and a stunning $250 million in punitive damages, more than was requested. The jury concluded that the makers knew or should have known their seeds would be used with the off-label older dicamba.

Bayer and BASF are appealing that verdict, which was expected to clear the way for thousands of new lawsuits involving dicamba. BASF and Dupont also agreed on new restrictions on over-the-top dicamba use after the verdict, however, adding conditions that it could only be applied by a licensed applicator and only in certain daylight hours, at certain windspeeds and temperatures. In his June 3 ruling, Judge Fletcher criticized those restrictions as confusing and unworkable.

In March of this year, the Office of the Inspector General of the EPA said it would open an investigation into whether the EPA acted improperly in issuing its 2016 and 2018 registrations for dicamba, as well as review states' use of Section 24(c) labels, often used for dicamba in recent years. The investigation was to “determine whether the EPA adhere[d] to federal requirements and scientifically sound principles for the 2016 registration and 2018 renewal for the new uses of the dicamba herbicide," according to the OIG’s annual plan.

David Murray can be reached at journal@hpj.com.