Dicamba use is in EPA’s corner
Farmers and applicators who are in a dilemma about whether they can legally apply dicamba following the U.S. Court of Appeals of the Ninth Circuit action will need to wait for the Environmental Protection Agency (EPA) for guidance. The uncertainty results from the June 3 opinion in which the Court vacated the Environmental Protection Agency’s (EPA) 2018 conditional registration of three dicamba herbicides for use in dicamba-tolerant crops. The herbicides in question are Xtendimax (Bayer), Engenia (BASF), and FeXapan (Corteva Agriscience.)
“Right now, it is unclear as to if it is legal to apply these pesticides,” says Brigit Rollins, staff attorney with the National Agricultural Law Center. “There’s no language in FIFRA (Federal Insecticide, Fungicide, and Rodenticide Act)
that gives clear guidance on what to do when a court vacates a registration. We won’t know more until EPA gives a formal response on what they would like people to do.”
EPA may respond soon, though, given the sense of urgency has developed from the opinion being given in the middle of spraying season, Rollins expects.
Vacating registration of an agricultural pesticide by a court is not unprecedented, says Rollins. The Ninth Circuit Court followed a similar route when it vacated EPA’s 2013 registration of the pesticide sulfoxaflor in 2015. (Pollinator Stewardship Council v. EPA)
In this case, the EPA treated the Ninth Circuit Court’s decision as a cancellation under FIFRA. However, the court left it up to the EPA to decide what to do with existing stock.
“In that case, it permitted farmers who had already purchased that pesticide to apply it for that growing season,” says Rollins. “What was unusual about the court’s opinion in the dicamba case was reference to EPA not taking account of the social component of dicamba application,” says Rollins. The court stated that the EPA “entirely failed to acknowledge" the risk that over-the-top dicamba use would “tear the social fabric of farming communities" in its opinion.
“I’m not aware of any court case that has vacated a registration of pesticide based on EPA’s failure to consider the social ramifications of registration,” says Rollins.
“Going forward, I could foresee the agency making sure they check that box on future registrations,” adds Harrison Pittman, director of the National Agricultural Law Center.
It’s possible the EPA may just leave it to individual states as to whether they want to enforce the court’s rulings, he adds. In turn, the Ninth Circuit Court may respond that cannot happen. The U.S. Supreme Court could take up the case, but it takes just a sliver of cases that are appealed to it.
“It’s a good old-fashioned constitutional argument,” Pittman adds.
Pittman adds another issue that is unresolved is whether the Ninth Circuit decision automatically applies nationwide.
“I think it’s just fascinating that a plaintiff or plaintiffs in a jurisdiction could bring a challenge against a federal agency over an issue that directly impacts almost nobody in that jurisdiction,” says Pittman. “I’m curious to see how EPA highlights that or mentions that.”
Could EPA ‘fix’ the registration?
Not under the Ninth Circuit’s opinion, says Rollins.
“The Ninth Circuit did not remand the registration,” says Rollins. “They vacated it. This means that they're not giving EPA that ability to make it right. There is certainly some question that even if they had, EPA would not have been able to remedy the registration before it expired (on December 20, 2020). I think this decision from the Ninth Circuit is certainly going to add another wrinkle to that (reregistration for 2021 and beyond).”