EPA defended its decision to allow use of existing stocks of three dicamba herbicides, saying in a court filing Tuesday that it has taken "responsible steps to avoid unregulated and inappropriate use of existing stocks."
“There is no legal or factual basis for petitioners’ allegation” that EPA violated the court’s order by issuing a cancellation order, which it said provided “for a responsible wind-down of existing stocks instead of banning their use immediately and completely,” EPA said.
“This action did not violate the vacatur: it did not restore the registration; it addresses only existing stocks left in a regulatory limbo.”
The agency was responding to an emergency motion filed by the petitioner groups in the case, including the Center for Food Safety and Center for Biological Diversity, to enforce the Ninth U.S. Circuit Court of Appeals’ June 3 decision vacating the registrations of Xtendimax, Engenia and FeXapan for over-the-top uses.
In a statement issued Tuesday night, Center for Biological Diversity attorney Stephanie Parent, co-counsel in the case, said, "None of the EPA’s bogus arguments change the reality that it is recklessly allowing ongoing in-season use of a pesticide it knows has already harmed millions of acres of farmland. Instead of attacking the coalition of family farmers who spurred this lawsuit, EPA chief Wheeler should be apologizing to them for harming their crops and their livelihoods.”
EPA said the petitioners were in the wrong court, that because the cancellation order is a “separate agency action,” it must be reviewed in federal district court, and urged the appeals court to deny the motion.
EPA also argued that rescinding a pesticide registration “only makes it illegal to distribute or sell that pesticide. It does not outlaw use of products already legally purchased.”
“EPA can hardly be faulted for not complying with an order the court never issued, especially when immediately banning use of existing stocks of these pesticides, as petitioners advocate, would have draconian effects on the U.S. agricultural system,” the agency said.
It also reiterated reasoning it had advanced in its cancellation order, which allows commercial applicators to sell and use the products, and growers to use them, that “when a registration is vacated, misuse of that product is no longer a violation” of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
EPA’s cancellation order “plugs a regulatory gap by ensuring that existing stocks of these newly unregistered pesticides are used safely and appropriately, and only for a limited period of time,” the agency said. The cancellation order allows use through July 31 for over-the-top applications on soybeans and cotton.
FIFRA specifies that unregistered pesticides cannot be sold or distributed but imposes no such prohibition on their use, EPA said. “There is also no provision that requires that unregistered pesticides — even formerly registered pesticides—must be used according to their labels.”
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“Thus, where there are ‘existing stocks’ of an unregistered pesticide — regardless of how the pesticide became unregistered — already in the possession of users (for example, certified applicators, including growers), FIFRA neither directly prohibits nor regulates their use,” EPA said.
FIFRA, does, however, allow for sale or use of existing stocks of pesticides whose registrations have been canceled, EPA said.
The agency also pushed back against the groups’ request to hold EPA Administrator Andrew Wheeler in contempt, saying “EPA did not violate a specific and definite order”: and that therefore, “no contempt sanction is warranted.”
The agency laid out the provisions of its cancellation order, including the prohibition on any further sales by manufacturers Bayer, BASF and Corteva.
Also Tuesday, putative intervenor BASF filed its own brief opposing the emergency motion, as did Monsanto, which has been purchased by Bayer and already has intervened in the case. CropLife America filed an amicus brief.
A growers' coalition including the American Soybean Association also filed an amicus brief.
If the court grants the petitioners' emergency motion, "it will add financial insult to sustained injury," ASA said in a news release. "The economic damage that would be caused would exacerbate an already tenuous economic situation for America’s farmers, who face depressed market prices and increased uncertainty in commodity markets due to ongoing trade tensions and the COVID-19 pandemic."
In addition to the ASA, groups on the brief include the American Farm Bureau Federation, National Cotton Council, National Association of Wheat Growers, National Corn Growers Association, and National Sorghum Producers.
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