EPA faces multiple dicamba lawsuits in 2021

This lawsuit was filed in late December 2020. So far, Bayer has filed a motion to intervene as a defendant, to help the EPA defend its registration of the company’s XtendiMax herbicide. BASF and Syngenta will likely file to intervene in this lawsuit, too, to defend their herbicides, Engenia and Tavium, respectively.

2. A MOTION FOR REVIEW BY THE COURT OF APPEALS FOR THE NINTH CIRCUIT (File No. 20-73750)

This petition asks the Ninth Circuit Court to once again revoke the EPA dicamba registrations based on the argument that:

— New registrations always violate FIFRA by posing “unreasonable adverse effects” on the environment.

— The EPA did not provide notice and comment on its change to the Section 24(c) labels.

— The EPA also violated the Endangered Species Act by not consulting the right. agencies to ensure that registration will not endanger listed species or critical habitats.

Bayer, BASF and Syngenta have all filed motions to intervene in this case and help the EPA defend its registrations.

The plaintiffs asked the court to assign the case to the same panel of judges who heard the previous lawsuits and subsequently overturned the 2018 registrations of XtendiMax, Engenia and FeXapan. The court agreed to do so.

However, that case has now been transferred out of the Ninth Circuit to a different Federal Circuit Court of Appeals to be consolidated with another series of lawsuits against the same 2020 dicamba recordings (see below). The National Family Farm Coalition et al. may try to have the case transferred to the Ninth Circuit, but for now it’s in the hands of the United States Court of Appeals for the District of Columbia Circuit.

There, the case is on hold for 60 days as EPA Biden evaluates all regulations created by EPA Trump since 2017, including 2020 dicamba registrations.

AMERICAN ASSOCIATION OF SOYBEANS AND COTTON FARMERS OF THE PLAINS v EPA

This group of plaintiffs – the American Soybean Association and the Plains Cotton Growers – are suing the EPA for the opposite reason: they argue that the 2020 registration of dicamba is too restrictive for soybean and cotton growers and harms their ability to control herbicide resistant weeds.

Like the environmental groups above, the ASA and the cotton growers chose to cover all their bases by filing multiple lawsuits in different federal courts:

1. A JOINT COMPLAINT FILED IN DC DISTRICT COURT (File # 1:20-cv-03190)

This 30-page complaint, filed in November 2020, argues that:

— Federal label deadlines of June 30 and July 30 for growers of soybeans and cotton, respectively, are too restrictive and could hurt growers who plant these crops later in the summer.

— Newly required pads on the federal label (240 feet and 310 feet for endangered species) are too large and will limit farmers’ ability to control weeds over a significant portion of their acreage.

This complaint asks the court to find that the EPA exceeded its authority in creating these new restrictions and to require the agency to rescind these restrictions, while keeping dicamba herbicides on the market.

So far, Bayer, BASF and Syngenta have all filed motions to intervene as defendants in this case, to help the EPA defend its 2020 registrations of their herbicides.

In addition to this complaint, the ASA and the cotton growers have filed a series of similar lawsuits in federal appeals courts. Specifically, Plains Cotton Growers filed a similar lawsuit against the EPA in the United States Court of Appeals for the Fifth Circuit. The ASA also filed an independent lawsuit against the EPA in the DC Circuit Court of Appeals. These cases have all been grouped into:

2. A PETITION CONSIDERING BY THE DC CIRCUIT COURT OF APPEALS (File # 20-1441)

These consolidated cases now together argue that:

— The EPA’s federal deadlines for dicamba are too restrictive and not supported by evidence.

— Federal EPA buffer requirements are too extensive and not supported by evidence.

This case has now been consolidated with the National Family Farm Coalition et al. cases, despite their very different arguments against EPA registration. Unless the environmental groups refer their case to the Ninth Circuit, they will be heard together in the DC Circuit Court of Appeals. However, as noted above, that case is now frozen for 60 days as the Biden administration reviews all EPA regulatory actions over the past four years.

In the meantime, some of the arguments from the ASA and the cotton growers may soon be addressed at the state level. Specifically, pesticide regulators in Texas, Oklahoma, and Louisiana have indicated that they will use Section 24(c) special local needs labels to extend federal use-by dates for dicamba. in their states to accommodate late-planted soybean and cotton fields. (See more here: https://www.dtnpf.com/…).

Emily Unglesbee can be reached at Emily.unglesbee@dtn.com

Follow her on Twitter @Emily_Unglesbee

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