Fate of Dicamba Clearer, As EPA Allows Existing Stocks Use
(Editor’s Note: Updates on 6/10 with information on dicamba restrictions in Illinois and South Dakota)
After a tumultuous three-plus years, the fate of dicamba — for 2020, at least — is finally clear.
Five full days after the U.S. Court of Appeals for the Ninth Circuit ruled to vacate the registration for dicamba use over the top on soybean and cotton, U.S. Environmental Protection Agency issued a final cancellation order for XtendiMax (Bayer), Engenia (BASF), and FeXapan (Corteva Agriscience), prohibiting the sale of the products, while permitting use of existing stocks under certain circumstances through July 31. Syngenta’s Tavium dicamba product remains unaffected.
EPA, which estimated that approximately 4 million gallons could be in the channels of trade, said that in similar situations, it has considered proceeding via Stop Sale, Use, and Removal Order (SSURO) rather than a cancellation order, but rejected this course of action. See the full cancellation order here.
With precious few days left for spraying over the top of soybeans, and a heatwave up against rain in the forecast cutting that timeline even shorter, the federal court ruling and ensuing delay of guidance to the states by EPA left growers and retailers in a state of shock and confusion.
In the five-day interim, state agriculture departments — with the exception of Illinois and South Dakota, which immediately suspended all dicamba sale and use — advised that dicamba sale, distribution, and use remained legal, absent a label cancellation by EPA.
“At the height of the growing season, the Court’s decision has threatened the livelihood of our nation’s farmers and the global food supply,” said EPA Administrator Andrew Wheeler on Monday evening. “Today’s cancellation and existing stocks order is consistent with EPA’s standard practice following registration invalidation, and is designed to advance compliance, ensure regulatory certainty, and to prevent the misuse of existing stocks.”
According to EPA, the order will mitigate some of the devastating economic consequences of the Court’s decision for growers, and particularly rural communities, at a time they are experiencing great stress due to the COVID-19 public health emergency. Details of the order, pertaining to XtendiMax, Engenia, and FeXapan are as follows:
- Distribution or sale by any person is generally prohibited except for ensuring proper disposal or return to the registrant.
- Growers and commercial applicators may use existing stocks that were in their possession on June 3, 2020, the effective date of the Court decision. Such use must be consistent with the product’s previously-approved label, and may not continue after July 31, 2020.
U.S. Secretary of Agriculture Sonny Perdue responded on Tuesday, saying, “Producers need all the tools in their toolbox to produce the world’s food, fuel, and fiber, and USDA re-affirms its support for EPA’s science-based process for assessing and managing ecological risks, balanced against the agricultural and societal benefits of crop protection tools. USDA stands ready to assist its federal partners in meeting that goal. Farmers across America have spent hard earned money on previously allowed crop protection tools. I encourage the EPA to use any available flexibilities to allow the continued use of already purchased dicamba products, which are a critical tool for American farmers to combat weeds resistant to many other herbicides, in fields that are already planted. Unfortunately, the Ninth Circuit has chosen to eliminate one of those tools.”
States’ Interpretations Differ
In Illinois, the No. 1 soybean-producing state in the country, the ruling was swiftly put into effect on June 3 by Illinois Department of Agriculture. Under that state’s law, the Department may only register products for use in the state that are also federally registered. Not all states have regulations as clear as Illinois does, hence their determinations that the products can continue to be used until they get a clear cancellation order from EPA rather than from the court, Jean Payne, President of Illinois Fertilizer and Chemical Association, explained.
After a frustrating five days being surrounded by states that continued to allow dicamba use, Illinois Department of Agriculture announced on the evening of June 9 it sided with EPA’s ruling to allow use of existing stocks of the three dicamba products. It also extended the application cut-off date to June 25 from June 20, provided that all conditions of the label are followed, including not spraying when the forecasted temperature exceeds 85 degrees.
Payne urged “continued stewardship and compliance with the label requirements even in these difficult circumstances. Much is at stake beyond dicamba use,” she said. “The courts are now telling us how to farm, and all pesticide uses are being scrutinized more than ever. There are also millions of acres of soybean and other plants in Illinois that are sensitive to dicamba. We must successfully coexist with other growers and property owners and bring down the number of pesticide misuse complaints.”
After it broke from the pack and halted all sales and use of dicamba, South Dakota Department of Agriculture also announced on June 9 it would allow use of existing stocks of dicamba through June 30, in line with EPA’s decision.
More than a dozen other states continued to allow dicamba sales, distribution, and use in the days after the Ninth Circuit’s ruling, including Nebraska, North Dakota, Louisiana, Kansas, Kentucky, Indiana, Iowa, Minnesota, Missouri, and Ohio.
“I’m very disappointed in the Ninth Circuit Court’s decision to overturn the EPA’s approval of dicamba products,” said Iowa Secretary of Agriculture Mike Naig. “The Court’s decision has left farmers without a critical weed management tool at the same time they are treating growing crops. I’m grateful that EPA recognized the hardship this places on our farmers and issued an order allowing them to use existing stocks to finish out the 2020 growing season.”
Iowa State University has provided a list of alternative herbicide products farmers can use this growing season. Farmers can also consult with their ag retailer or supplier to identify additional weed management solutions, Naig added.
Minnesota Agriculture Commissioner Thom Petersen said, “The Circuit Court of Appeals decision to revoke the use of these products was, unfortunately, very untimely for our farmers as many had already purchased the herbicide for this growing season. Timing is critical for farmers to apply the products and our further interpretation of Minnesota law allows us to use these products.”
Missouri Director of Agriculture Chris Chinn said, “Our team acknowledges the precarious position the court’s decision puts farmers, agriculture retailers and academia in. For the last three years, Missouri farmers specifically have dealt with historic drought, flooding, trade uncertainty and now market volatility due to COVID-19. An overnight decision making this tool illegal is not something that should be done mid-growing season. We call on the EPA to work with the United States Department of Agriculture due to their coordinating biotechnology role.”
Plaintiffs Fume
The Ninth Circuit Court sided with the claim of the petitioners — the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America — that EPA’s 2018 registration decision was based on insufficient evidence and therefore violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
“EPA substantially understated risks that it acknowledged and failed entirely to acknowledge other risks,” the court’s ruling stated.
George Kimbrell, Legal Director for the Center for Food Safety, fumed at EPA’s dithering and its decision to allow use of existing stocks:
“Yesterday’s disingenuous order from EPA flies in the face of the Court decision holding dicamba-based pesticides unlawful. It ignores the well-documented and overwhelming evidence of substantial drift harm to farmers from another disastrous spraying season. It ignores the risks to hundreds of endangered species. It ignores the comprehensive analysis by the Court of these harms. It raises the same arguments in favor of continued use that the Court has already rejected. The Trump administration is again showing it has no regard for the rule of law. All users that continue to not seek alternatives should be on notice that they are using a harmful, defective, and unlawful product.
In boldface type, Kimbrell added, “We will bring the EPA’s failure to abide by the Court’s order to the Court as expeditiously as possible.”
Dicamba Makers and Ag Groups Respond
Bayer, manufacturer of XtendiMax, said it “welcomed the EPA’s swift action. XtendiMax and the other low-volatility dicamba products are vital tools that many growers rely on to safely, successfully, and sustainably protect their crops from weeds. Our top priority is making sure all our customers have the support they need to have a successful season. We are reviewing the EPA’s action and we will keep this webpage updated with the latest information for our customers: www.RoundupReadyXtend.com/XtendimaxUpdates. Bayer stands fully behind XtendiMax, and we will continue working with the EPA, growers, academics, and others to provide long-term access to this important tool.”
Bayer noted the ruling pertains specifically to the EPA’s 2018 registration decision, which expires in December 2020. “We are currently working to obtain a new EPA registration for XtendiMax for the 2021 season and beyond – we hope to obtain the new registration by this fall.”
The company has frequently touted the Xtend system as a “much-needed weed control tool” for growers battling resistant weeds. Adoption of the technology has been rapid, with up to 60 million acres of Xtend soybeans planted in the U.S. last year, from 20 million in 2017.
BASF said on Tuesday that while it supports EPA’s action to allow the use of existing stocks of Engenia herbicide by growers and commercial applicators, it believes that “additional clarity and flexibility is required to address the complexities of the supply chain so that farmers have the opportunity to use Engenia this season in accordance with the EPA order.” It is working with the EPA to address this issue.
Following the Ninth Circuit’s ruling, BASF suspended selling and shipping Engenia while awaiting further direction from EPA. Based on EPA’s current guidance, the company will continue to not sell or distribute the herbicide in the United States. “Farmers continue to need access to over-the-top (OTT) applications of dicamba-based products to control resistant weeds across tens of millions of dicamba-tolerant soybean and cotton acres at their most critical time of the year,” it said.
BASF added, “We remain committed to serving our customers with safe and effective crop protection solutions, including Engenia herbicide, and we continue to work on new dicamba-based innovations to assist farmers with weed control. In addition, BASF will continue to pursue re-registration of Engenia with the U.S. EPA.”
A spokesperson for Corteva, maker of FeXapan, told CropLife it is reviewing the Court’s decision, adding, “We believe dicamba is an effective weed management tool for farmers that can be used safely when used according to the label.”
CropLife America issued this statement: “We are disappointed with the ruling by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit that vacates current U.S. registrations of certain low-volatility dicamba products. We continue to support the science-based decisions made by career scientists at EPA who have worked over decades under multiple administrations to ensure that pesticides are safe for the public and environment when used according to the label. This decision comes in the middle of planting season in the U.S. and could have devastating consequences for farmers, who have already made plans to protect their crops. We hope that EPA’s next steps will reflect the needs of American farmers for regulatory certainty and science-based decision-making.”
ARA President and CEO Daren Coppock sent a letter to EPA’s Wheeler earlier this week, saying, “This decision by the Ninth Circuit is an overreach and must be corrected immediately.”
Tavium OK
The Ninth Circuit’s ruling does not apply to Syngenta’s Tavium Plus VaporGrip Technology, which is an approved dicamba product registered for use on Xtend crops that contains dicamba + S-metolachlor (Dual II Magnum). Tavium can be applied up to the V4 growth stage of soybeans or within 45 days after planting, whichever comes first. Tavium can also be applied through the 6-leaf stage of cotton or within 60 days after planting, whichever comes first.
Tavium was not included in the ruling because it was not yet registered at the time EPA granted the re-approval of the conditional registration for dicamba over the top of dicamba-tolerant soybeans and cotton crops.
Syngenta told CropLife, “We will continue to monitor the Court’s ruling and evaluate any further implications that may impact our product offerings.”
The company, which is owned by Chinese state-owned enterprise ChemChina, said that its U.S. seeds business is “well-positioned to support farmers in response to the dicamba ruling.”
The battle over drift-injury-plagued dicamba-resistant technologies intensified this year. In February, jurors in federal court in Cape Girardeau, MO, sided with the state’s largest peach producer, awarding Bill and Denise Bader a total of $265 million in damages and holding Bayer-owned Monsanto and BASF equally liable for extensive dicamba drift damage to their peach trees. Bayer and BASF swiftly announced they would appeal the verdicts.
In late April, the Association of American Pesticide Control Officials (AAPCO) sent a letter to EPA, saying it supports that dicamba “labels should prohibit over-the-top, post-emergent soybean applications.” In addition, “registrations should be conditional on a year-by-year basis,” AAPCO noted.
In an email to CropLife, AAPCO President Leo Reed remarked that, “AAPCO has consistently supported states’ rights, pesticide product options, and the ability to use products effectively and safely. The organization has not advocated for the use of OTT dicamba to be cancelled or disapproved by the U.S. EPA.”
Reed continued, “However, AAPCO has advocated for more practical, understandable, and enforceable labels that allow for regional restrictions based on specific cropping needs. (AAPCO has advocated for) a system that would allow a state to mitigate risks which are specific to their local conditions, and enable the use of important weed control technologies.”
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