By Jennifer Dorsett
Field Editor

The U.S. Ninth Circuit Court of Appeals pulled the registration of three dicamba herbicides after finding the U.S. Environmental Protection Agency (EPA) substantially understated some risks and entirely failed to consider others when approving the registrations.

Bayer AG’s XtendiMax, as well as BASF’s Engenia and Corteva Agriscience’s FeXapan dicamba products, are affected by the decision, but Sygenta’s similar product Tavium is not addressed in the decision.

“Considering the record as a whole, we conclude that substantial evidence does not support the EPA’s Oct. 31, 2018, decision to grant conditional registrations to XtendiMax, Engenia and FeXapan for (over-the-top) OTT application on (dicamba-tolerant) DT soybeans and cotton,” the opinion of the court stated.

The three-judge panel found EPA’s conditional new-use registrations of the three products violated the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), which requires the applicant submit both “satisfactory data” and a finding that amendment of the registration will not “significantly increase the risk of any unreasonable adverse effect on the environment.”

Citing a variety of economic, environmental and social factors, the court said EPA “failed to perform a proper analysis of the risks and resulting costs of the uses. The EPA entirely failed to acknowledge the substantial degree of non-compliance with the 2017 label, and the likelihood of an even greater degree of non-compliance with the 2018 label. Further, the EPA entirely failed to recognize the economic cost imposed by the coercion of non-DT farmers to convert to DT crops, and the resulting anti-competitive effect of that coercion. Finally, the EPA entirely failed to recognize the enormous social cost to farming communities where use of dicamba herbicides had turned farmer against farmer and neighbor against neighbor.”

The court also said EPA substantially understated the costs it did acknowledge, including the acreage of DT soybeans in 2018 and resulting use of dicamba that year, resulting in 1 million acres of damages to non-DT crops in 18 states. Other estimates show 3.6 million acres of untreated soybeans were damaged in 2017.

“Further, the EPA recognized that there had been an enormous increase in dicamba complaints in 2017 and 2018, but it purported to be agnostic as to whether those complaints under-reported or over-reported the amount of dicamba damage,” the court wrote. “In fact, record evidence shows that the complaints substantially under-reported the actual amount of damage.”

The panel concluded, “The EPA made multiple errors in granting the conditional registrations. We conclude that the ‘fundamental flaws’ in the EPA’s analysis are so substantial that it is exceedingly ‘unlikely that the same rule would be adopted on remand.’”

“We strongly disagree with the ruling and are assessing our next steps,” Bayer AG said in a statement. “We will also await direction from the EPA on actions it may take in response to the ruling. Depending upon actions by the EPA and whether the ruling is successfully challenged, we will work quickly to minimize any impact on our customers this season. Our top priority is making sure our customers have the support they need to have a successful season.”

Bayer noted many U.S. soybean and cotton growers use XtendiMax in their weed-management programs, and “more than 90 percent of customers surveyed reported satisfaction with the weed control XtendiMax offered.”

BASF will probably lose about $90-$101 million from the Engenia herbicide, Sebastian Bray, an analyst at international banking and research firm Berenberg, said in an email to Bloomberg. Bray added the revenue loss will affect Bayer to a greater degree as it also sells DT seed.

The ruling pertains specifically to EPA’s 2018 registration decision, which expires in December 2020. Bayer noted it is working on a new EPA registration for the 2021 growing season and beyond.

Currently, farmers who have already purchased DT seed to use with those products may not be able to plant them, since pesticides cannot be sold or distributed without EPA registration.

“We acknowledge the difficulties these growers may have in finding effective and legal herbicides to protect their DT crops if we grant vacatur,” the court said in its 56-page opinion. “They have been placed in this situation through no fault of their own. However, the absence of substantial evidence to support the EPA’s decision compels us to vacate the registrations.”

The decision does not automatically vacate the registrations, but the court said a mandate enforcing the order will be issued “forthwith.”

UPDATE
On June 8, EPA issued a final cancellation order outlining limited and specific circumstances under which “existing stocks” of XtendiMax, Engenia and FeXapan may be used, for a limited period of time.

When asking EPA for clarification after the Ninth Circuit ruling, U.S. Secretary of Agriculture Sonny Perdue noted many farmers had already spent “hard-earned money on previously-allowed crop protection tools,” going on to say dicamba was a critical tool for farmers trying to combat weeds resistant to other herbicides in fields that had already been planted.

“At the height of the growing season, the court’s decision has threatened the livelihood of our nation’s farmers and the global food supply,” EPA Administrator Andrew Wheeler wrote in the cancellation order document.

EPA’s order will allow farmers and commercial applicators to use existing stocks that were in their possession on June 3, 2020. Such use must be consistent with the product label and may not continue after July 31, 2020.

In Texas, Agriculture Commissioner Sid Miller vowed to fight for continued use of dicamba in Texas under emergency conditions.

In addition to the “existing stocks” order, Miller is asking for an emergency exemption under Section 18 of FIFRA which would authorize EPA to allow unregistered uses of pesticides to address emergency conditions.

Under “Section 18” exemptions, EPA allows limited use of the pesticide in defined geographic areas for a finite period of time once EPA confirms that the situation meets that statutory definition of an “emergency condition.”

Miller maintains the Ninth Circuit’s ruling has created such an emergency condition. Without the popular dicamba herbicide, Texas cotton could be at risk.

“The Texas cotton crop is going in the ground right now and our cotton growers must have certainty,” Miller said. “I am not about to let a ruling by some court in California devastate the Texas cotton industry. Cotton is still king in Texas, no matter what the Ninth Circuit says.”