UPDATE JUNE 19, 2020: On June 19, 2020, the 9th Circuit denied the plaintiffs' emergency motion and granted the motions to intervene filed by BASF and E. I. du Pont de Nemours and Company. The court also granted motions allowing American Farm Bureau Federation et al., and CropLife America, to file briefs as amicus curiae. A copy of the AFBF amicus brief can be read in full here.
UPDATE JUNE 15, 2020: Late in the day on June 11, plaintiffs filed an emergency motion with the 9th Circuit Court asserting that the EPA's order cancelling three dicamba registrations and allowing use of existing stocks, violates the 9th Circuit Court's June 3 vacatur order and mandate. The court has required the EPA to file a response by Tuesday, June 16, with plaintiffs allowed 2 more days after that to file their reply. The court will then consider whether the EPA's June 8 cancellation of dicamba registrations complies with the court's vacatur order.
Both Corteva Agriscience, which markets the FeXapan herbicide, and BASF, which owns Engenia, announced that that they have filed motions to intervene in the lawsuit. Both companies noted that they only became aware that their dicamba products were implicated in the lawsuit when the Ninth Circuit vacated all three registrations on June 3.
UPDATE JUNE 9, 2020: KDA - The EPA’s cancellation order intended to clarify the limited and specific circumstances under which these dicamba products can be used for a limited period of time, including provisions for existing stocks. The Kansas Department of Agriculture has identified several unanswered questions about how this order applies to Kansas farmers and agribusinesses and is in communication with the EPA for further interpretation.
The EPA cancellation order addresses the sale, distribution, and use of existing stocks of the three affected dicamba products: Engenia, FeXapan, and Xtendimax with Vaporgrip Technology. Under this cancellation order, further distribution or sale of all existing stocks of these products is allowed only to the end user. Such distribution and sales can only be made by Kansas restricted use pesticide dealers. If growers, commercial applicators, and agribusinesses have these products in their possession, end use applications may still occur provided that all label restrictions are followed. All use is prohibited after July 31, 2020.
UPDATE JUNE 8, 2020: Today, the U.S. Environmental Protection Agency (EPA) issued a key order providing farmers with needed clarity following the Ninth Circuit Court of Appeals’ June 3, 2020 vacatur of three dicamba registrations. Today’s cancellation order outlines limited and specific circumstances under which existing stocks of the three affected dicamba products can be used for a limited period of time. EPA’s order will advance protection of public health and the environment by ensuring use of existing stocks follows important application procedures.
EPA’s order will mitigate some of the devastating economic consequences of the Court’s decision for growers, and particularly rural communities, at a time they are experiencing great stress due to the COVID-19 public health emergency.
Details of the Order:
EPA’s order addresses sale, distribution, and use of existing stocks of the three affected dicamba products – XtendiMax with vapor grip technology, Engenia, and FeXapan.
- Distribution or sale by any person is generally prohibited except for ensuring proper disposal or return to the registrant.
- Growers and commercial applicators may use existing stocks that were in their possession on June 3, 2020, the effective date of the Court decision. Such use must be consistent with the product’s previously-approved label, and may not continue after July 31, 2020.
JUNE 3, 2020: A three-judge panel of the 9th U.S. Circuit Court of Appeals said the EPA failed to comply with a federal pesticide law requiring it to consider the risks of the chemical when it granted a two-year conditional approval in late 2018. The opinion can be viewed here.
Although it was originally reported that the decision of the court would not be effective until a mandate was issued by the court, the mandate was filed almost immediately after the decision, making the decision effective on June 3, the date of the ruling.
At this point in time, it's unclear what this decision means for the current year's crop and on-farm supplies of XtendiMax, Engenia and FeXapan. Bayer has said, “We strongly disagree with the ruling and are assessing our options," according to a company statement. “If the ruling stands, 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."
KFB and AFBF will continue to monitor this case, and will work to protect the interests of farmers and ranchers, and to provide information of developments in the near future, like if and when the court issues its mandate to enforce the order, and if and when an appeal of the decision is made. We encourage people to also visit the Bayer website for updates.
The Kansas Department of Agriculture, pesticide and fertilizer program has issued the following statement on its website:
The KDA pesticide and fertilizer program is aware of the June 3, 2020, decision by the Ninth Circuit of the U.S. Court of Appeals to vacate the registrations for certain dicamba products (XtendiMax, FeXapan and Engenia). At this time, no action has been taken in Kansas in regard to these products, as we await guidance from the Environmental Protection Agency on how to best implement that decision. Therefore, these dicamba products are still available for use in Kansas, and KDA will enforce the sales and applications of these products as they are currently registered in Kansas. We will make every effort to keep you informed with critical information as it becomes available.