A federal judge has vacated the 2020 registrations of dicamba, a herbicide that has been embroiled in controversy ever since it was first approved in 2016 because of the off-target damage it has caused.
David Bury, a U.S. District Judge in Arizona, determined EPA violated notice-and-comment requirements when it issued “new use” registrations for cotton and soybean dicamba-tolerant crops. The products affected are Bayer’s Xtendimax, BASF’s Engenia, and Syngenta’s Tavium.
“The EPA did not afford notice, comment, or any opportunity for hearing when it issued the 2020 dicamba registrations,” Bury said in his opinion.
In addition, EPA “failed to determine no additional data was necessary before issuing the 2020 unconditional registrations for [over the top] dicamba,” Bury said.
It’s the second time in recent years that dicamba has been subject to an adverse court order. In June 2020, the 9th Circuit Court of Appeals vacated the registrations but declined after that decision to halt the actual use of the product. EPA allowed producers to use dicamba on hand since the decision came in the midst of a growing season; the impact of the judge's ruling on 2024 acreage is unclear at this time.
The seriousness of EPA’s error to consider new data in 2020 “is compounded by the finding in [the 9th Circuit decision] that the original registrations issued for OTT dicamba in 2016, amended in 2018, failed to consider risks to certain stakeholders, including those not using OTT dicamba,” the judge said.
EPA came back with revised registrations near the end of 2020, but the plaintiffs alleged that decision was rushed, a position they supported with emails from the agency’s administrative record.
Citing internal emails attached as exhibits to their motion for summary judgment and statement of material facts in the lawsuit, the Center for Food Safety, Center for Biological Diversity, Pesticide Action Network North America, and National Family Farm Coalition said in a brief to the court that the record shows “senior officials of the then-executive branch” pushed scientists at the Office of Pesticide Programs to get a decision out the door in the fall of 2020 before the presidential election.
“Our senior folks don’t have any clue what they are asking us to do,” one EPA official said in an email in August 2020 as OPP was reviewing data in preparation for making a decision.
“Today’s ruling outlaws dicamba products sprayed over emerged soybeans and cotton crops that are genetically engineered to withstand the spray,” the plaintiff groups said in a news release. “Since 2017 the pesticide has caused drift damage to millions of acres of non-genetically engineered soybeans as well as to orchards, gardens, trees and other plants on a scale unprecedented in the history of U.S. agriculture.”
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Bayer said, "We respectfully disagree with the ruling against the EPA’s registration decision, and we are assessing our next steps. We also await direction from the EPA on important actions it may take in response to the ruling.
"Our top priority is making sure growers have the approved products and support they need to safely and successfully grow their crops. We will keep our customers updated as we learn more from the EPA in advance of the 2024 growing season," the company said.
The American Soybean Association also expressed disappointment.
ASA President Josh Gackle said the decision "greatly risks disrupting supply chains and harming the entire farm economy. Especially coming at a time when most growers have already purchased seeds and herbicides for the growing season, this ruling stands to inflict great financial harm and uncertainty on many farmers preparing for spring planting. We will continue to review the decision and consider what options for recourse exist for U.S. farmers in the days ahead."
BASF said it is reviewing the order "and assessing its legal options while awaiting direction from the U.S. EPA on actions it will take as a result of the order."
Syngenta said it was "disappointed" in the decision and said "the use of dicamba is integral to controlling broadleaf weeds and invasive plants. It is imperative that farmers have access to newer dicamba technologies [as] they work to protect their livelihoods, supply food, and meet ever-increasing weed control challenges in an environmentally safe and sound way.”
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