An Update and Background on The Court’s Dicamba Decision-June 13th

Good morning everyone – Late Thursday night the original plaintiffs in the case filed an emergency motion with the Ninth Circuit calling for an immediate end to over-the-top dicamba use and for EPA to be held in contempt of court. The plaintiffs claim that the EPA lacks the authority to issue the order that allows use of existing stocks, because the court can, and did, vacate specific uses of the product (over-the-top applications on tolerant soybeans and cotton). The court’s order did not cancel the pesticide registrations, which is an extensive process governed by FIFRA and over which the EPA has authority. Information on the background of the case up to this point is listed below as provided to me.

The National Corn Growers Association plans to file an amicus brief in partnership with American Soybean Association, the National Cotton Council and Farm Bureau asking for the court to hold up the guidance allowing growers to use the products this year. The brief will be filed early next week, and NCGA plans to issue a statement once that happens.

National Corn Growers Association: Ruling Background Review

In 2019, a petition was filed in the U.S. Court of Appeals for the Ninth Circuit against the EPA for its decision in 2018 to extend the registration of three dicamba products, Xtendimax, FeXapan, and Engenia. The petition was filed by the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America. The petitioners claimed the EPA’s 2018 registration decision was based on insufficient evidence and therefore violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

On June 3, 2020, the Ninth Circuit issued a ruling that vacates current U.S. registrations of the three products in question. In its decision, the court cited that EPA substantially understated risks associated with in-season application. Further, the court asserts EPA understated the number of acres on which dicamba was used and the amount of damage it caused in 2018. The court’s decision immediately vacated the registrations of the products, which resulted in uncertainty among growers and applicators on the legality of using existing stocks. On June 8, 2020, EPA issued a press release with clarifying guidelines around the use of existing dicamba stocks, following the court’s decision to vacate the registrations. The agency clarified that growers and commercial applicators may use existing stocks that were in their possession on June 3, 2020, the effective date of the Court decision. Such use must be consistent with the product’s previously-approved label and may not continue after July 31, 2020. Any additional sale of the products is prohibited. However, numerous questions about the use of the product remain unanswered. Groups like the Ag Retailers Association quickly responded to EPA asking for additional guidance and clarification, which as of June 10 has not been provided.

On June 11, 2020, the plaintiffs in the case filed an emergency motion with the Ninth Circuit calling for an immediate end to over-the-top dicamba use and for EPA to be held in contempt of court. The plaintiffs claim that the EPA lacks the authority to issue the order that allows use of existing stocks, because the court can, and did, vacate specific uses of the product (over-the-top applications on tolerant soybeans and cotton). The court’s order did not cancel the pesticide registrations, which is an extensive process governed by FIFRA and over which the EPA has authority.

NCGA Next Steps – Current as of June 12, 2020

NCGA staff have been working closely with representatives from the American Soybean Association, National Cotton Council, Ag Retailers Association and others on this quick-moving issue. NCGA held off on releasing a statement following EPA’s order earlier in the week to better understand how these organizations were planning to respond, especially once it was understood that the plaintiffs were planning to go back to the court seeking an emergency ruling.

Following the filing of the emergency motion late on June 11, NCGA plans to file an amicus brief to the court in partnership with the American Soybean Association, National Cotton Council and American Farm Bureau Federation by early next week. NCGA will release a statement after the amicus is filed.

More to follow.

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