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Acting EPA Administrator Andrew Wheeler arrives for testimony before the Senate Environment and Public Works Committee Aug. 1, 2018. Win McNamee/Staff/GettyImages
Acting EPA Administrator Andrew Wheeler arrives for testimony before the Senate Environment and Public Works Committee Aug. 1, 2018.

Coalition asks judge to hold Wheeler in contempt

Updated: Corteva files to intervene in the case challenging EPA registration of XtendiMax. BASF weighs in with motion to intervene for Engenia

The coalition of groups who successfully argued against EPA's registrations for three dicamba products are asking the Ninth Circuit Court of Appeals to find Environmental Protection Agency Administrator Andrew Wheeler in contempt for refusing to abide by a federal court order suspending use of the pesticide dicamba.

On June 3, the court issued its opinion finding that EPA's registrations for Xtendimax with Vaporgrip Technology (EPA Reg. No. 524-617); Engenia – (EPA Reg. No. 7969-345); and FeXapan – (EPA Reg. No. 352-913) were not supported by substantial evidence and vacated the registrations. The vacatur became effective immediately on June 3, 2020, and as of that date the three products became unregistered.

On June 8, EPA issued a cancellation order outlining circumstances under which existing stocks of the three affected dicamba products could be used through July 31.

On June 11, the groups sought to find Wheeler in contempt.

"Trump's EPA is so rogue it thinks it can blow off a federal court ruling that stops the damaging dicamba spraying in an administrative order," said George Kimbrell, of the Center for Food Safety, lead counsel in the case. "EPA needs a lesson in separation of powers and we're asking the court to give it to them."

Perdue responds

In a June 12 statement, Agriculture Secretary Sonny Perdue says EPA’s order follows precedence set by earlier administrations. 

“USDA supports the actions taken by the EPA to respond responsibly to the decision of the Ninth Circuit regarding Dicamba,” Perdue said. “At a time when the security of the food supply chain is paramount, the Center for Biological Diversity and its allies seek to cripple American farmers and further limit their ability to feed, fuel, and clothe this nation and the world. The Ninth Circuit should not allow plaintiffs’ hostility against the American farmer to cloud the fact that the EPA’s actions follow both legal precedent and common sense.” 

Corteva statement 

Corteva, Inc. filed a motion to intervene in the case challenging the U.S. Environmental Protection Agency registration of the dicamba herbicide marketed as XtendiMax on June 12. Corteva was not a party to the lawsuit. 

“Corteva is seeking to intervene to preserve our rights and to support the rights of customers to use the impacted dicamba weed control technologies. We believe dicamba is an effective weed management tool for farmers when used according to the label. We also seek to preserve the role of the U.S. EPA to administer the Federal Insecticide, Fungicide & Rodenticide Act, including granting or cancelling crop protection product registrations, for the benefit of agriculture and society.” 

BASF statement

BASF filed an emergency motion to intervene following the decision by the court. The court's June 3 2020 decision brought BASF's product into the case for the first time. In it's statement regarding the motion the company noted that it has made the request to intervene after "careful consideration of the sudden and severe financial impact vacating the registration has had on farmers during this critical application time." The company notes the court's decision caused "immediate chaos" among the agricultural community and "threatens the livelihood of countless U.S. farmers." The company statement also weighed in on the move by groups to ask the court to undo EPA's order.

"Taking this action during the height of the application season gives no regard to the significant investments farmers have made in their businesses and leaves them without viable options for the growing season," says Paul Rea, senior vice president, BASF Agricultural Solutions North America. "Farming is difficult even in the best of times and remains challenging. Making this decision now, when weed resitance continues to threaten farming operations, is disastrous for our custoomers. Farmers have counted on applications of dicamba-based products to control troublesome weeds for decades, and they continue to need these tools now and in the future."

The BASF statement included a comment from Brad Kellenbach, a Jamestown, N.D., soybean farmer: "I have been using Engenia for three years, and it is a critical part of my operation to reduce the threat of resistant weeds and ensure a successful yield each season. My livelihood depends on tools like engenia to tackle these challenges, and those of us that use it have dedicatd a tremendous amount of time to ensure that we are doing it responsibly. The court's decision to vacate the Engenia registration leaves me with no good options for this year. It's a steep cost that no grower under these circumstances was ready to bear."

Short history

In 2016, EPA conditionally registered the three dicamba-based herbicide products under section 3 of the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 136a, for postemergence use on crops genetically engineered to be dicamba tolerant. The registrations were subject to an automatic two-year expiration. Prior to expiration in the fall of 2018, EPA extended the registrations to allow use through Dec. 20, 2020.

On Jan. 11, 2019, the National Family Farm Coalition, Pesticide Action Network North America, Center for Biological Diversity and Center for Food Safety petitioned the United States Court of Appeals for the 9th Circuit for review of EPA's 2018 decision extending registration for the products. The decision was issued June 3, 2020.

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