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Farm group coalition files court brief defending use of existing dicamba stocks

Six farm groups say a petition to invalidate EPA’s existing dicamba stocks order will key negative weed control and economic impacts.

A coalition of national farm groups has filed an amicus brief supporting the position against the non-governmental organization petition that seeks to invalidate the Environmental Protection Agency’s (EPA) dicamba existing stocks order and hold the agency in contempt. (An amicus brief is a legal document filed in court cases by non-litigants).

The grower’s coalition brief — filed by the American Farm Bureau Federation, American Soybean Association, National Cotton Council of America, National Association of Wheat Growers, National Corn Growers Association, and National Sorghum Producers — makes the case for farmers caught in a narrow weed-control window, according to these groups. 
“Neither a midseason cancellation nor a vacatur unplants a seed, retroactively tills a field, or clears a storehouse of products purchased for lawful use under the prior registration,” said the groups. 

A June 3 opinion issued by the U.S. Court of Appeals for the Ninth Circuit vacated the conditional registration of three dicamba herbicides used for dicamba-tolerant crops like soybeans. The registrations were slated to expire on December 20, 2020. The Court said 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. 

On June 8, the Environmental Protection Agency (EPA ) issued a cancellation order regarding the Ninth Circuit Court of Appeals’ June 3, 2020, vacatur of three dicamba registrations: Xtendimax, Engenia, and FeXapan. 

The cancellation order stops distribution or sale of these three dicamba products. However, 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. Some states have earlier cutoff dates. 

Farm Groups Cite Consequences
Immediately banning use of existing stocks of XtendiMax, Engenia, and FeXapan would financially devastate America’s soybean and cotton growers, who have invested an estimated $4.28 billion in seed and hundreds of millions of dollars in herbicides, according to the groups. An estimated 64 million acres of dicamba-tolerant seed is already planted with no viable weed control alternative that can realistically be deployed over the next several weeks, according to the groups. Expected yield loss for soybeans and cotton is as high as 50%, with respective losses estimated at as much as $10 billion and $800 million, according to the groups. 
If the court chooses to grant the NGO’s emergency motion, it will add financial insult to sustained injury, according to the groups. The economic damage that would be caused would exacerbate an already tenuous economic situation for America’s farmers, who face depressed market prices and increased uncertainty in commodity markets due to ongoing trade tensions and the COVID-19 pandemic according to the groups. 
Further, the groups say granting the petitioners’ requested relief would:

  1. Plunge the agricultural community back into the widespread uncertainty and confusion it experienced in the period between the court’s vacatur and EPA’s Cancellation Order.
  2. Set a damaging precedent, short circuiting the proper administrative and judicial review framework that Congress prescribed for existing stocks under FIFRA (Federal Insecticide, Fungicide, and Rodenticide Act). Farmers use countless FIFRA-regulated pesticide products, including herbicides, insecticides, and fungicides. This decision could set a disruptive precedent with profound, long-term consequences for all farmers and ranchers for years to come, according to the groups. 

Investments and planting decisions have been made, and most planting has been completed — all based on the realistic expectation that over-the-top application of these dicamba products would be possible through the growing season, according to the groups. The court should respect EPA’s expertise in managing existing stocks of these formerly registered pesticide products and deny the emergency motion pending against EPA, the groups say. 

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