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Court of Appeals sides with EPA, growers

oticki/ThinkstockPhotos Tractor Spraying Soybeans Upward View
Updated: BASF is pleased with Ninth Circuit Court decision; growers can continue to spray dicamba through July 31, 2020.

The U.S. Court of Appeals has denied a petition that sought to invalidate EPA’s Cancellation and Existing Stocks Order issued June 8.

The coalition of groups who successfully argued against EPA's registrations for three dicamba products asked 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.

During its series of late-night orders June 19, the Court granted both CropLife America’s and a grower coalition’s requests to file an amicus brief. The grower request was filed June 16 by the American Soybean Association, American Farm Bureau Federation, National Cotton Council of America, National Association of Wheat Growers, National Corn Growers Association, and National Sorghum Producers, and supports EPA’s existing stocks decision. That brief highlighted the devastating consequences that would result if the Center for Food Safety request were granted and growers could not use existing stocks.

Immediately banning use of existing stocks of Xtendimax, Engenia, and FeXapan would have financially devastating consequences on America’s soybean growers, who have invested an estimated $3.35 billion for soybean seed in 2020 and hundreds of millions of dollars more in herbicides, labor, fertilizer and other costs, expecting that over-the-top applications of dicamba would remain lawful, according to the American Soybean Association.

Statement from BASF

"BASF is pleased that the United States Court of Appeals for the Ninth Circuit granted BASF’s emergency motion to intervene in the case vacating the registrations of three dicamba-based herbicides, including BASF’s Engenia herbicide. We are also pleased that the court’s decision will permit the continued use of existing stocks pending further court proceedings.

"The EPA’s order, issued on June 8, 2020, allows growers and commercial applicators to continue to apply Engenia in a way that is consistent with the previously approved label until July 31, 2020. The EPA’s decision to allow the use of existing stocks will help to save this year’s crops and save farmers’ millions of dollars in their investment in our product.

"However, as the Engenia registration remains vacated as a result of the Court’s original decision, we seek a recall and stay of the Court’s mandate until BASF has the opportunity to challenge that decision. We are committed to pursue all legal remedies available to ensure farmers have access to the safe and effective crop protection solutions they have come to rely on, including Engenia herbicide. BASF will also continue to pursue EPA re-registration of Engenia for the coming seasons."

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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