Dicamba use for 2020 in question due to federal court ruling
Whether farmers may legally apply dicamba formulations that match dicamba-tolerant crops including soybeans in 2020 is unclear. That’s due to a federal court opinion that has vacated the Environmental Protection Agency’s (EPA) 2018 conditional registration of three dicamba herbicides for use in dicamba-tolerant crops. The U.S. Court of Appeals for the Ninth Circuit—headquartered in San Francisco—said the EPA failed to acknowledge the risks—such as off-target dicamba damage—in its two-year 2018 conditional registration that covered the 2019 application season and was to cover the 2020 season.
Monsanto (which Bayer bought in 2018) first released dicamba-tolerant soybeans (Xtend) in 2016. However, dicamba formulations that matched Xtend beans were not released until 2017. On October 31, 2018, the EPA approved conditional registrations for the three dicamba-based herbicides for an additional two years to Bayer (Xtend), Corteva Agriscience (formerly DuPont, FeXapan) and BASF (Engenia).
The National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity and the Pesticide Action Network North America then then sought review of the approval. argue that the EPA’s decision violates both the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act.
“We hold that the EPA’s October 31, 2018, decision, and the conditional new-use registrations of XtendiMax, Engenia, and FeXapan for use on DT (dicamba-tolerant) soybean and cotton that are premised on that decision, violate FIFRA,” stated the Court in its opinion.
The Court also stated 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 those post-emergent crops. The Court also said the EPA also was “agnostic” about whether formal complaints of dicamba damage were under-reported or overreported the actual damage. The Court said record evidence clearly showed that dicamba damage was substantially under-reported.
“Finally, the 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,” the Court also said in its ruling.
“The EPA also entirely failed to acknowledge three other risks,” the Court continued. “The EPA entirely failed to acknowledge record evidence showing the high likelihood that restrictions on OTT (over the top) dicamba application imposed by the 2018 label would not be followed. The EPA based its registration decision on the premise that the label’s mitigation measures would limit off-field movement of OTT dicamba. These measures became increasingly restrictive with each iteration of OTT dicamba labels. Record evidence shows that the restrictions on the 2016 and 2017 labels had already been difficult if not impossible to follow for even conscientious users; the restrictions on the 2018 label are even more onerous. Further, the EPA entirely failed to acknowledge the substantial risk that the registrations would have anticompetitive economic effects in the soybean and cotton industries. Finally, the EPA entirely failed to acknowledge the risk that OTT dicamba use would tear the social fabric of farming communities. We therefore vacate the EPA’s We therefore vacate the EPA’s October 31, 2018, registration decision and the three registrations premised on that decision.”
So, What Now?
“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.”
In response, Bayer issued this statement.
“We strongly disagree with the ruling and are assessing our options. If the ruling stands, 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 EPA conducted an extensive review and considered all relevant science prior to issuing the current registration for XtendiMax. In October 2018, the EPA extended the registration of XtendiMax and stated that “This action was informed by input from and extensive collaboration between EPA, state regulators, growers, academic researchers, pesticide manufacturers, and other stakeholders. EPA understands that dicamba is a valuable pest control tool for America’s growers.” The EPA’s informed science-based decision reaffirms that this tool is vital for growers and does not pose any unreasonable risks of off-target movement when used according to label directions.
Bayer stands fully behind our XtendiMax product. 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.”
Not everyone agrees with that, though. “Today’s decision is a massive win for farmers and the environment,” said George Kimbrell of the Center for Food Safety (CFS), lead counsel in the case, in a CFS statement. “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.”
“This is a massive victory that will protect people and wildlife from uses of a highly toxic pesticide that never should’ve been approved by the EPA,” said Lori Ann Burd, director of the Center for Biological Diversity’s environmental health program, in a statement. “The fact that the Trump EPA approved these uses of dicamba despite its well-documented record of damaging millions of acres of farmland, tree groves and gardens highlights how tightly the pesticide industry controls EPA’s pesticide-approval process. But this ruling is a powerful rejection of their lawlessness.”