US: Dicamba fight continues

Date:07-22-2020

By Emily Unglesbee

Bayer, BASF and Corteva Agriscience continue the fight to preserve postemergent dicamba use. The companies are contesting the results of a June 3 decision by three judges on the U.S. Circuit Court of Appeals for the Ninth Circuit, which vacated the registrations of their dicamba herbicides, XtendiMax, Engenia and FeXapan.

On Monday evening, the three companies filed separate petitions asking for an "en banc" review of the case, which requests that all the judges of the Ninth Circuit re-hear the original case.

In the original decision, the three judges assigned to the case concluded that EPA had broken its own governing law when it re-registered the three herbicides in 2018. The judges ruled that the agency did not consider multiple risks to the environment and society from in-season dicamba use. The original lawsuit was brought in 2017 by a group of environmental and farm groups, namely the National Family Farm Coalition, the Center for Food Safety, the Center for Biological Diversity and the Pesticide Action Network.

Now Bayer, BASF and Corteva are asking that a broader group of Ninth Circuit judges re-hear the case. The companies argue that the judges' decision to vacate the registrations effective immediately was a departure from past precedent among other Circuit Courts, as well as the Supreme Court, and violated principles of administrative and constitutional law.

BASF and Corteva also reiterated an argument that the judges' decision did not give them an opportunity to defend their herbicides, since the original lawsuit in 2017 only mentioned Bayer's XtendiMax. Only when the case was re-filed in 2019 was it expanded to address EPA's entire 2018 dicamba registration decision, which included Engenia and FeXapan.

BASF and Corteva argue that this new scope was not clear enough in the course of the lawsuit, and the companies weren't aware their herbicides' registrations were at stake before the June 3 ruling.

This petition for an en banc re-hearing is BASF's second attempt to reverse the judges' ruling. A petition filed by the company on June 16 asking the Ninth Circuit to stay and recall its mandate was denied by the judges on June 25.

George Kimbrell, legal director for one of the plaintiffs, the Center for Food Safety, said the group is confident these petitions will meet a similar fate. "We are reviewing the filings from today, but the Court's decision is fully supported by the record and law, and we are confident the Court will reject the Intervenors' latest missives," he told DTN in an email.

For now, the dicamba registrations remain vacated, although an EPA cancellation order permits continued use of existing stocks until July 31, as long as users follow the original labels and state restrictions. Both Bayer and BASF are actively working to re-register their herbicides with EPA for 2021.

Should these petitions for en banc review fail, the companies will only have one final legal option -- appealing the case to the U.S. Supreme Court.