Farmers and retailers with thousands of gallons of dicamba products sitting in the shed, poised for application, have just one question in the wake of the 9th Circuit’s decision: what now?
Late Wednesday, June 3, the U.S. Court of Appeals for the 9th Circuit issued a ruling that vacated the U.S. EPA registration for over-the-top dicamba use on soybean and cotton. The Illinois Department of Agriculture legal counsel evaluated the ruling and believes it clearly requires a halt to all use, sale, and distribution of all uses of Xtendimax, Engenia and FeXapan, effective immediately. That use applies to all crops, including corn and pasture.
“If a farmer has any of those products in the shed, they’re not to use it because there is no legal label for those products to be used, and not just on soybeans but on corn, pasture, burn down, too,” says Jean Payne, Illinois Fertilizer and Chemical Association. “They’re no longer supposed to exist.”
IDOA’s public information officer, Krista Lisser says, “While the Department has the authority to regulate the sale and use of pesticides within the State, it cannot permit any sale or use without a valid Federal Insecticide, Fungicide, and Rodenticide Act registration. The Department acknowledges and is sympathetic to the challenges that the Court’s decision will pose to the industry.”
U.S. EPA. Administrator Andrew Wheeler responded with a statement late Friday: “We are disappointed with the decision. The 2020 growing season is well underway and this creates undue burden for our first conservationists – farmers. EPA has been overwhelmed with letters and calls from farmers nationwide since the Court issued its opinion, and these testimonies cite the devastation of this decision on their crops and the threat to America’s food supply. The Court itself noted in this order that it will place a great hardship on America’s farmers. This ruling implicates millions of acres of crops, millions of dollars already spent by farmers, and the food and fiber Americans across the country rely on to feed their families.”
Wheeler says EPA is assessing all avenues to mitigate the impact on farmers.
The administrator is correct in that these are tough days for farmers and retailers, caught in the middle of a last-minute decision by the 9th Circuit, as the Illinois Department of Agriculture’s June 20 application deadline was bearing down. Some dicamba had already been applied in southern Illinois, as central Illinois was gearing up and beginning to run, and parts of northern Illinois were set to be able to apply on Friday as temperatures hovered just below the required 85-degree mark for application.
Aaron Hager, University of Illinois weed scientist, says one still-viable option is to apply Syngenta’s dicamba product, Tavium – if you can find it. “My impression was that Syngenta never envisioned a huge share of this market,” he points out.
The ruling doesn’t affect Tavium because the ruling effectively says U.S. EPA should never have re-registered Xtendimax, Engenia and FeXapan in 2018. Syngenta didn’t register Tavium until 2019, so it wasn’t part of the re-registration process that grouped those three products together and it wasn’t part of the judicial review. However, Tavium’s registration does expire at the end of 2020.
Tavium is a premix of dicamba and S-metoachlor and can be applied to dicamba-resistant soybeans. All federal and state restrictions will still apply, including applying within 45 days of planting, prior to June 20, and at temperatures below 85 degrees. Tavium also has to be applied before the V4 growth stage, and it can’t be used on double-crop beans.
Hager assumes glyphosate will still be applied on most of the dicamba beans, and any registered foliar-applied soybean herbicide can be tank mixed, as long as that tank mix isn’t prohibited on either label.
But what about waterhemp, arguably the main reason many farmers switched to dicamba? Hager says they did so because glyphosate wasn’t effective and resistance to PPO inhibitors was very common. Waterhemp has shown resistance to ALS inhibitors, glyphosate and PPO inhibitors.
“We don’t have options for foliar control for herbicide-resistant waterhemp,” Hager says.
In a situation where you’ve tank mixed glyphosate and a PPO inhibitor like Flexstar, Hager says you could have waterhemp plants that are resistant to glyphosate but not Flexstar, or vice versa. “But I think that’s rare. I think we’ll have more with resistance to both,” he says.
If you have waterhemp plants that are resistant to herbicides from all three groups, Hager doesn’t mince words: “You have no other herbicide options.”
Next up: mechanical cultivation.
The temptation to apply the dicamba product already sitting in your shed is both clear and understandable. But Hager says to do so would be a clear violation of federal law.
“I think IDOA would consider further application a violation of FIFRA,” he says, referring to the Federal Insecticide, Fungicide and Rodenticide Act that set up the basic U.S. system of pesticide regulation to protect applicators, consumers and the environment.
“If you make application of an unlabeled product, you just violated federal law,” he explains, adding that if a complaint arises, IDOA could cancel your license. Further uncertainty surrounds what may happen to a crop that was treated with non-registered pesticide.
“Could that whole crop be condemned?” Hager asks. “If the regulatory agency in Illinois says do not spray, I would not spray.”
Payne, who represents retailers all over Illinois, agrees, and adds farmers have to remember we’re talking about a food crop.
“If you apply anyway, you’re making the decision to put a cancelled pesticide on a food product. The whole structure of our food supply system relies on regulatory structures that are critical to ensure trust of food consumers,” she says.
The frustration is real, and Payne gets it. “You turn on the news and see people looting and flagrantly breaking the law, so it can tempting to think ‘do laws even matter sometimes?’” she says. “But you have to remember we have an obligation to produce a safe and trusted food supply - therefore compliance with the law is paramount in a much bigger sense.”
FIFRA is a scientific, vetted system that provides what Payne calls the “best regulatory framework in the world” because everybody has to prove that what they use is safe.
It’s ok to disagree with the court, she adds, but don’t give activist groups more reason to scrutinize what agriculture is doing. And, don’t jeopardize the glowing feeling consumers have right now about farmers, due to the pandemic, by creating uncertainty about the safety of the food supply.
“The activist groups that filed this lawsuit originally remain very active and they’ll be watching very closely as a result of this cancellation. If they see farmers or retailers continuing to spray a product that’s not registered for use, can you imagine the news stories?” Payne asks.
As of this writing, Indiana state regulators say it’s still business as usual for those who want to apply dicamba herbicides over dicamba-tolerant soybeans. Unlike Illinois and many other states, Indiana law does not require a federal registration in order to secure a state registration, so they can still apply the product. In Illinois, state registration of a product is contingent on federal registration – so when that registration disappears, so goes Illinois’s.
For more on state-by-state reaction:
* Cotton states: Confusion is apparent with court’s dicamba ban