EPA allows limited use of existing dicamba stocks, but many questions remain

The Environmental Protection Agency issued a key order June 9 providing farmers with some needed clarity following the Ninth Circuit Court of Appeals’ June 3 vacating of three dicamba registrations, but the order left some farm organizations and state agriculture boards with further questions.

The EPA said it had asked the court for guidance on a possible ruling on the dicamba registrations on May 20 but received no answer. Under existing regulations, the agency said, the court’s action leaves it up to the EPA to decide how to rule on use and disposal of existing stocks, as happened with earlier revocations of registrations by courts for sulfoxaflor (in 2015) and spirotetramat (in 2010).

The June 9 cancellation order outlines limited and specific circumstances under which existing stocks of the three affected dicamba products can be used for a limited period of time. “EPA’s order will advance protection of public health and the environment by ensuring use of existing stocks follows important application procedures,” the agency said. “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. “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.”

EPA said its 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.

On June 3, the Ninth Circuit Court of Appeals issued an order vacating EPA’s pesticide registrations for three products containing the active ingredient dicamba: Xtendimax with Vaporgrip Technology (EPA Reg. No. 524-617); Engenia–(EPA Reg. No. 7969-345); and FeXapan–(EPA Reg. No. 352-913). The court ruled after finding that EPA had not properly considered the data on those products’ safety to adjacent fields. Coming in the middle of growing season, the ruling threw farmers into confusion, with makers of the product issuing wait-and-see statements while the EPA pondered what response to make.

EPA’s order addresses the sale, distribution and use of existing stocks of the three affected dicamba products.

• 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.

• The EPA did not prohibit pre-emergent uses, because the court’s decision was based on post-emergent or over-the-top usage.

EPA included urgent appeals it received from many farm organizations. The National Cotton Council of American estimated that forgoing dicamba use at this date could lead to losses of up to $400 million. “Of the 9.63 million acres of dicamba tolerant varieties, the baseline assumption is that 20% of those acres (or 1.926 million acres) could be susceptible to significant yield losses due to increased weed pressures … The economic damage caused associated with the vacatur of these dicamba products exacerbates an already tenuous economic situation for cotton farmers who are already facing depressed market prices due to ongoing trade tensions and the COVID-19 pandemic.” After soybean farmers, cotton farmers are the second most important users of dicamba products.

Questions remain for many

In a June 8 letter explaining the EPA’s ruling, the Kansas Department of Agriculture wrote, “The Kansas Department of Agriculture has identified several unanswered questions about how this order applies to Kansas farmers and agribusinesses and is in communication with the EPA for further interpretation. As further details become available from the EPA, KDA will share that information on our website at www.agriculture.ks.gov/dicamba.”

The Agricultural Retailers Association and the National Council of Farmer Cooperatives called on EPA on June 9 to further clarify the agency’s cancellation order on use and distribution of dicamba products. “While the agency’s cancellation order provided some guidance to end-users as well as applicators, it failed to address several scenarios where product is in the pipeline at various points in the supply chain,” the groups said in a letter. “These questions need quick answers during this critical time of the growing season as weeds will not wait for protracted legal analysis.”

BASF, maker of the dicamba formulation Engenia, said “While BASF supports the U.S. EPA’s action to allow the use of existing stocks of Engenia herbicide by growers and commercial applicators, we believe 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. Therefore, we will be working with the EPA to address this issue. Following the Ninth Circuit Court of Appeals’ June 3, 2020, order, BASF suspended selling and shipping Engenia herbicide while awaiting further direction from the U.S. EPA. Based on EPA’s current guidance, BASF will continue to not sell or distribute Engenia herbicide in the United States.”

It added, “Farmers continue to need access to over-the-top 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 … 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 EPA.”

Some states delay honoring order

Agriculture officials in eight states—Iowa, Indiana, Texas, Missouri, Louisiana, Kansas, Tennessee, and Wisconsin—initially said they would not enforce the order against farmers using already purchased stocks until EPA issued further instructions, giving farmers in their states precious days to apply the products pending EPA’s review.

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.”

The Louisiana Commissioner of Agriculture and Forestry, Mike Strain, sent a letter to the Ninth Circuit saying the state would not comply with the deregistration order, according to the Advocate newspaper. "Dicamba is still available for use in Louisiana as currently labeled and will continue to be until ordered to stop,” Strain said in a news release. Bayer, which makes one of the banned dicamba formulations, has a plant that makes it in Luling, Louisiana. Strain requested an emergency exemption for Louisiana farmers, especially those who have already planted crops and expect to use the herbicide soon on corn, wheat, soybean and cotton crops.

David Murray can be reached at [email protected].