Dicamba rules change (again)

The United States Court of Appeals for the Ninth Circuit granted BASF’s emergency motion to intervene in the case vacating the registrations of three dicamba-based herbicides, including BASF’s Engenia herbicide. The court’s decision will permit the continued use of existing stocks pending further court proceedings.

“The EPA’s order, issued on June 8, 2020, allows growers and commercial applicators to continue to apply Engenia in a way that is consistent with the previously approved label until July 31, 2020. The EPA’s decision to allow the use of existing stocks will help to save this year’s crops and save farmers’ millions of dollars in their investment in our product,” said BASF in a statement. “However, as the Engenia registration remains vacated as a result of the Court’s original decision, we seek a recall and stay of the Court’s mandate until BASF has the opportunity to challenge that decision. We are committed to pursue all legal remedies available to ensure farmers have access to the safe and effective crop protection solutions they have come to rely on, including Engenia herbicide. BASF will also continue to pursue EPA re-registration of Engenia for the coming seasons.”

This DOES NOT change the current legal status of dicamba use in Ohio. Here is a review of the latest happenings from Peggy Kirk Hall, director of agricultural law, Ohio State University Agricultural and Resource Law Program.

Ohio growers may use existing stocks of the products now but must end use by June 30, 2020.

The court denied the emergency motion that the petitioners (National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America) filed on June 13. That motion asked the court to enforce its previous mandate to vacate the registrations, to prevent any further use of the products, and to hold the EPA in contempt for issuing the Cancellation Order the agency had made that allowed continued use of existing stocks of the products. The court did not provide its reasoning for denying the motion.

The court granted amicus curiae (friend of the court) status to CropLife America and American Farm Bureau (representing itself as well as national soybean, cotton, wheat, corn and sorghum association interest.) Those parties filed their amicus curiae briefs in support of the EPA’s Cancellation Order and in opposition to the petitioners’ emergency motion.

The court granted also emergency motions to intervene in the case filed by BASF Corporation, maker of Engenia, and DuPont (Corteva), maker of FeXapan. The companies argued that they did not know that the scope of the court’s order on Bayer’s XtendiMax product registration would also affect their dicamba product registrations and they should now be permitted an opportunity to defend their products.

BASF filed a motion asking the court to recall the court’s mandate that had cancelled the registrations of the products, claiming that the court had not followed appropriate procedural rules. In its brief, BASF also suggested that te company would be filing petitions for rehearing since BASF had not had an opportunity to be heard when the court vacated the registration of its Engenia product.
The court ordered the original petitioners to file a brief in response to BASF’s motion to recall the mandate by June 23, and for BASF to reply to that brief by June 24.

The companies that make the dicamba products clearly intend to challenge the vacatur of their product registrations, even though the EPA’s Cancellation Order allows continued use of existing stocks of the products until July 30, 2020. This dicamba battle is not yet over, and we’ll keep you posted on new developments.