A federal appeals court said Friday it doesn’t have jurisdiction over a challenge to dicamba registrations brought by soybean and cotton growers, leaving the herbicide's fate in the hands of a pair of district courts entertaining somewhat differing lawsuits.
The D.C. Circuit Court of Appeals said it lacks jurisdiction because EPA did not hold a “public hearing” before issuing its 2020 registrations for over-the-top uses or for its 2022 amendments.
Briefing has been taking place this spring and summer in a lawsuit filed by environmental groups in federal court in Arizona seeking to halt use of the herbicide, which has been blamed for extensive damage to off-target crops. The government and dicamba registrant-intervenors have until July 27 to file their final briefs in support of summary judgment.
The American Soybean Association, as well as Texas-based Plains Cotton Growers, also filed a challenge in federal court in Washington, D.C., but that case has been stayed pending the D.C. Circuit’s decision. The groups contend that restrictions in the form of cut-off dates and buffer zones will hinder growers' productivity.
“ASA has contended this case belongs at the district court level, and we appreciate the D.C. Circuit Court of Appeals for reaching that same conclusion,” said Alan Meadows, an ASA director and soybean farmer from Tennessee who also chairs the group’s regulatory committee.
“This ruling clarifies important FIFRA jurisdictional issues, and we hope it will also create a clearer pathway for similar cases in the future,” Meadows said. “We are continuing to review the ruling and what implications it has for our remaining frustrations with the dicamba registration and the ways in which it unnecessarily inhibits farmers’ operations.”
The Center for Biological Diversity, Center for Food Safety, National Family Farm Coalition and Pesticide Action Network are plaintiffs in the case pending in Arizona.
In its 3-0 decision, the D.C. Circuit said, “[W]e have exercised direct review of EPA actions under FIFRA only when the agency provided public notice of its prospective actions to anyone potentially affected by them.” FIFRA stands for the Federal Insecticide, Fungicide, and Rodenticide Act.
“We need not resolve in this case whether, and in what circumstances, public notice of a pending agency action might suffice to render the agency’s deliberations a ‘public hearing’ within the meaning of FIFRA,” the court said, in the opinion penned by Circuit Judge Sri Srinivasan.
Circuit Judge Sonia Rao signed on to the decision but said FIFRA’s language is confusing for courts to apply.
“FIFRA provides generally for judicial review in the district court but allows for a direct petition for review in the court of appeals following a ‘public hearing,’” the judge wrote in a concurring opinion.
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“Our cases have blurred the clear jurisdictional line drawn by Congress, accepting petitions for review in a wider and undefined set of circumstances. By departing from FIFRA’s straightforward allocation of jurisdiction, we have generated substantial and wasteful confusion as to where litigants must file. In an appropriate case, this court should reconsider the issue en banc to set out a clear rule that is faithful to the statutory text.”
In 2018, the 9th U.S. Circuit Court of Appeals vacated registrations of Bayer's Xtendimax, BASF's Engenia and Corteva's FeXapan in early June, causing a furor in farm country. Ultimately, however, the court declined to halt use of the products. EPA issued new registrations in 2020 and amendments in 2022.
In February 2021, Corteva discontinued sales of FeXapan. Syngenta began selling its dicamba product, Tavium, the same year.
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