Dicamba plaintiffs demand immediate cutoff

The same coalition of environmental groups that won a lawsuit resulting in the Environmental Protection Agency’s being ordered to revoke its registration of four formulations of dicamba for over-the-top application was back before the same judge June 11, demanding that the EPA be ordered to immediately halt all use. The court found that EPA had substantially underestimated the risks of dicamba drift. In response to the judge’s order, the EPA issued a cancellation order that allowed farmers to keep using existing stocks of four dicamba formulations until July 31. The plaintiffs claimed this order will cause 16 million pounds of dicamba contamination in neighboring fields.

In their petition, the plaintiffs argued, “EPA lacks authority to issue its ‘cancellation’ order because there is nothing to cancel here; vacatur—which is wholly different from FIFRA pesticide cancellation—made null and void the 2018 new use decision allowing OTT dicamba spraying.”

Rejecting the EPA’s justification for continuing to allow dicamba use, the plaintiffs said,  “Instead of simply admitting that vacatur means the OTT uses are unlawful and spraying is no longer allowed, EPA remained silent for five days, then opted to ‘mitigate’ the Court’s decision, brazenly attempting to tailor the Court’s vacatur to its liking, while in reality eviscerating it by making it prospective as to existing products until July 31, effectively the rest of the spraying season. EPA called this a ‘cancellation’ order but it was actually a continuing uses despite vacatur order.”

The petition requests “emergency relief… to prevent off-field drift harms that will occur on millions of acres should spraying continue.”

David Murray can be reached at [email protected].