Paul Goeringer, Extension Ag Law Legal Specialist
University of Maryland
The article is not a substitute for legal advice. Reposted from the Ag Risk Management Blog
A recent Arizona federal district court ruling has vacated the 2020 registrations for dicamba products used over the top in cotton and soybean production. The ruling is based on violations of federal law requiring the public to have an opportunity to comment on the proposed “new uses” in 2020. This ruling currently means for growers that these products might not be available for the 2024 growing season. Based on the ruling, we are waiting to determine what the defendants will do next. Update: On Feb. 14, the EPA issued an existing stocks order to allow for limited continued usage for the dicambas at issue for stocks no longer in control of the pesticide companies. A table of what is allowed is below; to read that order, click here.
Court’s Decision
This litigation stems from the registrations issued in 2020 and amendments made in 2022 and 2023 by the Environmental Protection Agency (EPA) for the “new use” over-the-top applications of dicamba products. At issue in this is did EPA violate the Federal Insecticide, Fungicide, Rodenticide Act (FIFRA), the Endangered Species Act (ESA), and the Administrative Procedures Act (APA) when approving the “new use” registrations in 2020.
The court agreed with the plaintiffs that the 2020 registration was a “new use” because the 2016 and 2018 registrations had been vacated and canceled by an earlier court ruling. EPA had to treat the 2020 registration for over-the-top applications of dicamba products as a new use. This “new use” registration required the EPA to publish the 2020 registrations and allow the public to comment.
Because of the violations in issuing the 2020 registration for over-the-top use of dicamba products, the court turns to whether an exception should be granted to EPA to remand the registrations without vacatur. Vacatur is a Latin term meaning it is vacated. Based on the record, the court determines that vacatur is warranted and an exemption should not be granted. EPA had failed to consider many potential risks when assessing the new uses, and based on prior court rulings, it had effectively allowed the dicamba products on the market with no registrations since 2016.
What Does All This Mean?
We are currently back in a wait-and-see mode regarding whether dicamba will be available for over-the-top uses during the 2024 growing season. It is unclear at this time if EPA will appeal this ruling and request a stay while the Ninth Circuit is hearing the appeal. If the EPA does appeal and receive a stay, this will allow sales of dicambas used in over-the-top applications to continue. If EPA does not appeal, we could see what we did in 2020 with EPA canceling the registration based on a court ruling but allowing already purchased products to be used during the growing season.
One vital issue to note in all this is that Bayer (the parent company of Monsanto) in 2023 began to bring lawsuits claiming growers saved seeds for replanting the new Xtendimax technology. These are similar to those brought when growers would save Roundup Ready technology before the patent expired, but a few have one difference. Several lawsuits highlight that growers additionally violated patents by spraying dicambas that were unapproved for over-the-top applications. Why is it important to note this here? Many growers may assume that they can spray dicambas unregistered for over-the-top applications, but that can come with stiff penalties from state agencies and EPA and, at the same time, may open growers up to claims of patent violations.
Updated: Table from order highlighting what is allowed.
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