On June 3, 2020, the U.S. Court of Appeals for the 9th Circuit ruled that the U.S. Environmental Protection Agency (“EPA”) failed to adequately address the risks presented by three over the top (“OTT”) registrations of the herbicide dicamba as required by Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”) and immediately vacated the registrations. See National Family Farm Coalition v. EPA [9th Cir. June 3, 2020].

The three registered dicamba products for which the registrations were cancelled are Bayer’s XtendiMax with VaporGrip Technology (EPA Reg. No. 524-617) [originally a Monsanto product], BASF’s Engenia Herbicide (EPA Reg. No. 7969-345) and DuPont’s FeXapan (EPA Reg. No. 352-913).  Because Syngenta’s Tavium Plus VaporGrip Technology (EPA Reg. No. 100-1623), also an OTT dicamba pro0duct, was not part of the 2018, two-year registration for the three affected products, it can still be used.

This decision is the latest development in a process stretching over five years. As glyphosate use had increased significantly over the prior ten years, so had weed resistance to glyphosate. As an alternative, industry began developing cotton and soybean varieties tolerant to dicamba. In 2015, the U.S. Department of Agriculture (“USDA”) deregulated dicamba-tolerant soybean and cotton seeds, while applications were still pending for the registration of dicamba for OTT use on such crops.

Dicamba-tolerant seed was quickly adopted by growers for the 2016 season, although no dicamba product was registered for use on such crops. Farmers apparently resorted to the unlawful use of existing dicamba products not labeled for such uses, and problems quickly developed. Dicamba is extremely toxic to broadleaf plants, including bushes and trees. It has an elevated tendency to drift and can volatize and move off-site after application. State Departments of Agriculture quickly began to receive numerous complaints of off-target damage.

In late 2016 EPA issued two-year time-limited registrations for the OTT versions of dicamba authorized for use on the dicamba-tolerant cotton and soybeans.  The new registrations were ostensibly of such reduced volatility that EPA found that the new formulations were “expected to eliminate any off-site exposures.”  Rapid adoption by growers of the tolerant seed and new formulation lead to a forty-fold increase in the use of dicamba on cotton and a four-fold increase in the use on soybeans in 2017, and use increased further in 2018.

EPA’s conclusions regarding off-target effects proved to be off-target themselves. Almost 1,300 complaints of off-target dicamba were received by state regulators in 2017, followed by some 1,400 complaints in 2018. It was estimated that by mid-July 2018, more than 1.1 million acres of non-tolerant soybeans had been damaged.

EPA and the registrants responded by further amending the dicamba label imposing stricter use conditions designed to limit off-target movement and issuing new two-year registrations in 2018. Despite the conditions added to the registration, EPA acknowledged that there would still be damage to sensitive crops and plants, including tree lines between fields but stated it could not quantify the expected damage. Plaintiffs in this case had challenged the 2016 registrations, but before the Court could rule EPA had replaced them with the 2018 registrations. The challenge then shifted to those registrations.

FIFRA is a cost-benefit statute which requires a balancing of interests. To issue a registration or grant an amendment, EPA must find that the registration “would not significantly increase the risk of any unreasonable adverse effect on the environment…taking into account the economic, social and environmental costs and benefits of the use of any pesticide.” The Court found that EPA failed to properly balance interests, having substantially understated three risks presented by the 2018 registrations and failed to even acknowledge three other risks. 

As to understated risks, the Court listed the following: that EPA under estimated the acreage that would be planted with tolerant seed and thus the quantity of dicamba that would be applied; that EPA discounted the volume of dicamba complaints to state agencies with no evidence supporting that conclusion; and that EPA failed to even try to quantify the amount of off-target damage that could be expected.

As to risks EPA ignored, the Court identified the following: that the OTT dicamba label directions had become so complex that it was likely they would not be complied with, which had already occurred with the less-complex 2016 label; that EPA had failed as FIFRA requires to assess potential economic impact of the damage that was likely to occur, and that EPA had ignored the social impacts of the decisions, including the damage to the farm community social structures caused by the neighbor-to-neighbor damage.

Having found the registration decisions in violation of FIFRA, the Court vacated the registrations. An immediate uproar spread through the registrant and grower communities as the decision comes right in the thick of the use season. Various state Department of Agriculture began issuing conflicting opinions as to whether sale or use of the product could continue. EPA responded by issuing the EPA Dicamba Cancellation Order. The Order allows the continued distribution and sale by commercial applicators, and the use of existing stocks in the possession of growers until July 31, 2020, which would be the end of the use season.

Plaintiffs immediately responded by filing a motion to hold EPA in contempt, asserting that under the Court’s vacatur of the registration EPA lacked legal authority to allow any continued sale or use as of the date of the Court’s opinion. On June 19 the Court denied the contempt motion. As EPA and industry interests pointed out, review of FIFRA cancellation orders is authorized in the Federal district courts, not the Courts of Appeal.  

As this issue was unfolding, both BASF and DuPont filed emergency intervention motions with the Court, claiming that they had been unaware that the decision was going to impact their registrations. Although that issue had been briefed by the plaintiffs, EPA and intervenor Monsanto, apparently neither BASF nor DuPont had followed this litigation closely enough to realize its potential implications. BASF has also filed a motion to have the Court withdraw its mandate, thus arguably creating an opening for BASF to seek to challenge the underlying decision by seeking en banc review by the full 9th Circuit. As of the writing of this article on June 22, this motion remains pending and briefing continues.

This saga is far from over.  The challenged registrations expire at the end of 2020, so EPA must again address the issues associated with these products.