The 9th U.S. Circuit Court of Appeals has denied requests to rehear its decision vacating registrations for Xtendimax, FeXapan and Engenia, leaving the Supreme Court as the last stop for dicamba manufacturers seeking to overturn the ruling.
In a brief order Monday, the court reported that two of the judges on the panel that issued the decision opposed granting rehearing en banc, which takes place before a panel of 11 judges. One of the judges on the panel also recommended denial. But none of the other judges on the court expressed any interest in hearing the case en banc.
The decision to reject the rehearing request leaves the court’s June 3 ruling in place and means Bayer, Corteva and BASF will have to go to the Supreme Court to seek review of the June 3 decision. The Environmental Protection Agency could so as well, but unlike the companies, EPA did not seek rehearing of the decision and did not raise the same objections to the petitioners' case as the companies did.
In a statement, Bayer said it thought the rehearing request should have been granted “for several reasons, including that the court disregarded the EPA’s expert scientific judgments.” The company said it is “assessing our options to still address the court’s ruling and set the record straight.”
“Bayer stands fully behind XtendiMax, and we are proud of our role in bringing innovations like XtendiMax forward to help growers safely, successfully, and sustainably protect their crops from weeds,” the company said. “We will continue working with the EPA, growers, academics, and others to provide long-term access to this important tool.”
BASF also said, "We are assessing additional legal options, including a challenge to the U.S. Supreme Court." And Corteva noted that "the parties in the case retain the right to appeal to the United States Supreme Court," but that it is "too early to comment on that potential action."
Hailed by the petitioner groups that brought the case in the first place, the 9th Circuit’s decision found that EPA had understated or not properly considered the economic and social costs of approving the dicamba products for “over-the-top” use on soybeans.
But controversy has dogged the products since they were approved for use in 2016, with millions of acres of off-target damage to soybeans and other crops reported. Bayer has agreed to a $400 million settlement for growers who experienced damage.
The court’s decision caused confusion and alarm in farm country, where the growing season was in full swing. On June 8, EPA issued a cancellation order allowing the use through July 31 of existing stocks in the hand of growers and applicators. The 9th Circuit rejected the petitioner groups’ — the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity and Pesticide Action North America — motion to enforce the court’s order and prohibit continuing use of dicamba.
EPA has been working on making a re-registration decision this fall on the three herbicides, so farmers have time to make 2021 purchasing decisions well ahead of the 2021 season.
The companies’ petitions attacked the decision for not properly deferring to EPA’s expertise. Both BASF and Corteva contended that rehearing was necessary because they were not aware the case involved their herbicides, though the petitioners say they clearly stated they were challenging all three registrations.
George Kimbrell, the Center for Food Safety’s legal director and the petitioners’ lead attorney, said the groups are “gratified that the whole court agrees that the requests were without merit.”
And attorney and co-counsel Stephanie Parent of the Center for Biological Diversity called the decision “of primary importance to whether EPA can lawfully approve any future dicamba products.”
A senior analyst with Bernstein Research said on an investor call with Corteva CEO Jim Collins Monday that “there's a pretty decent chance” that Xtendimax will not be on the market past 2020.
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Asked by Agri-Pulse to expand on that remark, Jonas Oxgaard said, “I genuinely don’t see any way for this to be re-registered. The court was quite scathing in its criticism of the EPA, and the big concern in my view is the restrictions. The court highlighted how the current amount of damage is not acceptable, but the restrictions that are currently in place practically make it impossible for a farmer to apply it legally. So giving Xtendimax a more restrictive label is likely to not survive the court’s review, and without a more restrictive label it’s too harmful.”
Oxgaard also emphasized an aspect of the decision he thinks has been overlooked. “The court didn’t think it was worth returning the decision to EPA for a fix — the court is effectively telling the EPA that it’s unfixable," the analyst said.
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This story has been corrected from the original version to clarify the judges' positions on rehearing,