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BASF, Corteva file motions to intervene in federal court case that vacated dicamba registrations

BASF officials say the financial impact of vacating these herbicides is huge

BASF and Corteva Agriscience have filed motions to intervene in the June 3 decision made by the U.S. Court of Appeals for the Ninth Circuit to vacate three dicamba herbicides for dicamba-tolerant soybeans and cotton. The case vacated registrations for XtendiMax (Bayer), Engenia (BASF), and FeXapan (Corteva).

The Court said the Environmental Protection Agency (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.
In response, the EPA issued a cancellation order that stopped distribution or sale of these three dicamba products on June 8. 

Farmers and commercial operators may use existing stocks of XtendiMax, Engenia, and FeXapan that were in their possession as of June 3, 2020, which was the date of the court decision. Use must be consistent with the products' previously approved labels and may not continue after July 31, 2020. 

BASF’s Motion
BASF officials say BASF made the decision to intervene after considering the financial impact vacating the registration has had on farmers at a time when farmers have less than a month to protect millions of acres threatened by herbicide-resistant weeds. 

Seeking to make matters worse, the challengers have now asked the Ninth Circuit to undo the EPA’s order which implemented the panel’s decision and addressed the uncertainty it caused, say BASF officials. 
“Taking this action during the height of the application season gives no regard to the significant investments farmers have made in their businesses and leaves them without viable options for the growing season,” said Paul Rea, senior vice president, BASF Agricultural Solutions North America, in a BASF press release. “Farming is difficult even in the best of times and remains challenging. Making this decision now, when weed resistance continues to threaten farming operations, is disastrous for our customers. Farmers have counted on applications of dicamba-based products to control troublesome weeds for decades, and they continue to need these tools now and in the future.” 
BASF  officials said in a news release that the EPA’s approval process for crop protection products is science-based and data-driven. BASF invests in and uses the best science and testing protocols to develop next-generation innovations like Engenia herbicide, according to BASF officials. BASF scientists have over 50 years of experience in developing and improving dicamba for effective and safe applications, BASF officials added. 
“Engenia and other dicamba-based herbicides are critical in ensuring the long-term sustainability of agriculture and crop protection products,” continued Rea. “Not only do they play a role in protecting crops, but also in ensuring an abundant, safe and affordable food supply. Continued innovation in crop protection and weed management must continue and be supported to sustain this industry.”

Corteva’s Motion 

Corteva has also filed a motion to intervene in the U.S. Court of Appeals for the Ninth Circuit case challenging the EPA’s registration of XtendiMax.. Corteva was not a party to the lawsuit, and until June 3, the case appeared to involve only the XtendiMax registration, stated Corteva officials in a news release. The Ninth Circuit Court nevertheless vacated EPA’s registration of XtendiMax, Engenia, and Corteva’s registration for DuPont FeXapan with VaporGrip Technology, said Corteva officials.

Corteva issued this statement: 
“Corteva is seeking to intervene to preserve our rights and to support the rights of customers to use the impacted dicamba weed control technologies. We believe dicamba is an effective weed management tool for farmers when used according to the label.  We also seek to preserve the role of the U.S. EPA to administer the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA), including granting or cancelling crop protection product registrations, for the benefit of agriculture and society.”

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