EPA has illegally defied the Ninth U.S. Circuit Court of Appeals’ decision vacating registrations of dicamba for over-the-top use on cotton and soybeans, the petitioner groups argued in response to the agency’s brief filed Tuesday claiming that its cancellation complied with both the court order and FIFRA.
“EPA simply did not get the message, or more likely, defied it, in a contempt-worthy action,” the petitioner groups, the Center for Biological Diversity and Center for Food Safety, said in a brief filed Thursday evening. The petitioners have asked the court to hold EPA Administrator Andrew Wheeler in contempt.
Registrants Bayer, BASF and Corteva Agriscience, along with Croplife America, the American Farm Bureau Federation and a collection of commodity groups, have sided with EPA, arguing that cotton and soybean growers face significant harm if they cannot use dicamba this growing season.
In their brief, attorneys for the Center for Biological Diversity and Center for Food Safety questioned the legality of EPA’s June 8 cancellation order that allows use of existing stocks of Xtendimax, Engenia and FeXapan that were in the hands of growers and applicators as of June 3, the date of the court’s order.
“EPA can’t flout the rule of law. The Ninth Circuit has the power to stop ongoing harm from dicamba use and rightfully did just that,” Center for Biological Diversity attorney and co-counsel Stephanie Parent said. “There’s no question that dicamba drift is continuing to damage crops and natural areas across much of the U.S. It makes no legal or moral sense to continue to allow its use simply because it’s helping some farmers when we know it’s hurting other farmers.”
The court knew what it was doing when it vacated the registrations, the groups said.
“The court was aware of EPA’s potential misuse of ‘cancellation’ to continue OTT (over-the-top) use, because EPA presented it in post-argument briefing,” the groups said. “The plain meaning of the court’s remedy decision is a flat rejection of EPA’s view.”
The Ninth Circuit “said that it knew the ‘practical effects’ of its decision, which included the ‘adverse impact’ on growers that had already bought the products ‘relying on the availability of the herbicides for post-emergent use,’” they said.
EPA said in a post-argument brief seeking remand of the matter that it was concerned about the herbicides becoming “unusable” this growing season, the petitioners noted.
The court took its action “while recognizing that its decision would negatively impact users who had already purchased the technology,” they said.
“EPA acknowledged that ‘the court found that the labels were difficult to follow,’ but still concluded without further analysis that use according to its infeasible label is better than unrestricted use, and therefore the order was needed to ‘prevent unreasonable adverse effects to the environment,’” the groups said.
“EPA cannot claim with a straight face that its order allowing the use to continue under the defective label, which will result in dicamba damage, is somehow preventing unreasonable adverse risks to the environment and endangered species,” the groups said.
“EPA’s contempt defense rests entirely on its nonsensical view that, despite this court holding that OTT use harms were unreasonable and would continue to increase, and issuing the mandate immediately, this court did not specifically and definitively order that such OTT uses be halted,” they said.
It’s not clear that EPA complied with FIFRA’s cancellation provisions, the groups said. The agency’s 12-page order, “put together in a few days, nowhere explains how it is (or could be, in light of the court’s decision) supported by the requisite substantial evidence standard for all EPA FIFRA actions.”
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EPA had argued that the cancellation order is a separate agency action that needs to be challenged in a separate court.
But undertaking such an action would make it “exceedingly difficult, if not impossible, to secure relief in time to prevent most of the illegal spraying EPA has purported to authorize,” the groups said. Besides, they said, “this court still has the authority to enforce its mandate.”
“While cancellation orders issued when EPA cancels a pesticide would be their own separate agency actions, that is not the case here: there is nothing to cancel, because the new use registration is null and void,” the groups said.
"EPA had lawful options, but this was not one of them,” the groups said. “It could have asked this court to recall the mandate, issue a stay, and seek rehearing,” the brief said. “But, each of these lawful paths would have put the burden on EPA to address the mounds of evidence this court relied upon in vacating. Instead, EPA chose the most expedient way to ‘mitigate’ the court’s ruling: an administrative order allowing continued use and flipping the burden to petitioners to stop it.”
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