States are mostly reacting to the Ninth Circuit’s June 3 decision vacating registrations of three dicamba products by continuing to allow use of the herbicides under state registrations.

AlabamaIndianaIowaKansasKentuckyLouisianaMichigan, MinnesotaMissouriNebraskaNorth Dakota, Ohio, Oklahoma, TennesseeTexas and Wisconsin all have said Bayer’s Xtendimax, BASF’s Engenia and Corteva’s FeXapan can continue to be used. Illinois, however, has said growers and applicators should not apply them. The court decision did not address Syngenta’s Tavium, also a dicamba herbicide.

The national Agricultural Retailers Association also is advising members to stop applying.

Given the appeals court’s decision, “the safest conclusion to draw is that the registrations have been vacated and the products are no longer labeled,” ARA said. “There may still be some legal recourse available to EPA and the manufacturers, but we would advise ceasing applications … until advised by the registrants that it is legal to do so.”

The group's senior vice president of public policy and counsel, Richard Gupton urged caution in states that have said dicamba can still be used.

“Several state government agencies have issued public statements indicating the dicamba products referenced in the Ninth Circuit court decision are still available for sale and use as they are currently registered products in that state and the state agency awaits guidance from the EPA," Gupton said in Ag Professional. "ARA urges caution to any ag retailer as they may still be open to civil liability and their insurance coverage placed in jeopardy" as a result of the court decision. "The industry at the moment is in unchartered territory."

Everyone was waiting Friday for EPA to issue guidance to the industry or seek an emergency stay from the appeals court. Early Friday evening, the agency issued a statement, but it fell short of offering clear guidance to the industry.

After detailing the impact the decision will have on farmers, EPA Administrator Andrew Wheeler said “EPA is assessing all avenues to mitigate the impact of the court’s decision on farmers.”

Jean Payne, president of the Illinois Fertilizer & Chemical Association, said applicators have to be especially careful because of liability concerns.

“When you’re a commercial business, your risk, your liability, is a lot different,” she said. That risk can be especially high in a situation such as this, where there is a federal court ruling vacating the registrations, she said.

Bayer, the registrant for Xtendimax, said it’s awaiting EPA action.

“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,” the company said.

BASF said it’s “waiting on further direction from the U.S. EPA on actions they will take as a result of this order.” Corteva did not respond to a request for comment. 

Agriculture Secretary Sonny Perdue and major farm groups are calling on the agency to allow use of existing stocks of dicamba in the wake of the decision.

“Farmers across America have spent hard-earned money on previously allowed crop protection tools,” Perdue said in a statement. He encouraged EPA “to use any available flexibilities to allow the continued use of already purchased dicamba products, which are a critical tool for American farmers to combat weeds resistant to many other herbicides, in fields that are already planted.”

The plaintiffs in the case say they will oppose any stay request and that the decision is clear. “The [over-the-top] uses for the three products at issue are vacated and unlawful to use per the court’s decision,” said George Kimbrell, legal director at the Center for Food Safety.

Lori Ann Burd, environmental health program director and a senior attorney at the Center for Biological Diversity, told Agri-Pulse that EPA should be “issuing a cancellation order right now.”

In a statement Monday, the plaintiffs — CFS, the Center for Biological Diversity, National Family Farm Coalition and Pesticide Action Network North America — said "EPA should immediately confirm to the states that these uses are illegal. EPA's failure to do so to this point is a dereliction of the agency's duty to farmers and the public. We represent farmers, including many who have suffered years of drift damage from these harmful dicamba products. They must not be subjected to a fourth year of rampant injury to their crops from dicamba drift."

They also said Wheeler's assertion that the decision is a "threat to America's food supply," is "totally unsupported by any facts."  

States are taking different approaches, but most that have issued statements say they are continuing to allow use of the herbicides.

In Iowa, agriculture department spokesperson Keely Coppess said it’s “business as usual” in the state. The department has not issued a stop-sale order “and will continue operating under the current pesticide program until it receives guidance from the EPA,” the department said, adding it “does not anticipate taking enforcement action against those who otherwise appropriately purchase, sell, or use these products in the interim.”

Missouri Ag Commissioner Chris Chinn said on Friday the herbicides "are still registered for sale and use within the state of Missouri and will be treated as such" until EPA issues enforcement guidance.

In North Dakota, Ag Commissioner Doug Goehring had said Thursday use of the three products hinged on whether EPA was successful in obtaining a stay. But Friday, he said that because the court ruling did not address state registrations, growers could continue to use the products.

“Until directed otherwise, the department is standing by our state registrations of these products and recognizing them as legal for sale and use in North Dakota,” Goehring said.

The Office of the Indiana State Chemist offered similar reasoning.Indiana pesticide law does not currently require federal registration as a condition of state registration,” OISC said on its website. “OISC has not initiated any suspension or cancellation orders for these products at this point. Therefore, the state registrations are still valid until any necessary suspension or cancellation process can be taken.”

In Texas, Ag Commissioner Sid Miller said, “Dicamba is still available for use in Texas as currently labeled and will continue to be so until someone tells us to stop. In this difficult time, the last thing Texas farmers need is more uncertainty.”

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The Tennessee Department of Agriculture said it is “awaiting direction for whether and how those registered labels are affected in Tennessee. Absent further direction from EPA, the department expects to enforce label requirements as the products are registered in this state.”   

The situation is different in Illinois, where the Illinois Department of Agriculture has issued a statement saying that while it "has the authority to regulate the sale and use of pesticides within the state, it cannot permit any sale or use without a valid FIFRA registration. The department acknowledges and is sympathetic to the challenges that the court’s decision will pose to the industry."

Minnesota’s ag department initially said the court’s ruling means the products “can no longer be used, effective immediately,” but on Monday it changed its position, saying that "according to Minnesota law, an unregistered pesticide previously registered in the state may be used following the cancellation of the registration of the pesticide."

Meanwhile, ag groups are seeking relief from EPA. In a release issued Friday, National Cotton Council President and CEO Gary Adams said NCC would support an appeal of the decision. Adams also asked EPA Administrator Andrew Wheeler to allow existing stocks to be used.

ARA President and CEO Daren Coppock also wrote to Wheeler, urging him to use “all legal avenues available to obtain a stay of this overreaching court order and to apply longstanding ‘existing stocks’ procedures to the cancellation.”

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This article was updated June 8 to include a statement from the plaintiffs and the addition of Nebraska and Ohio to those states still allowing use of the three dicamba herbicides.