05 Jun Industry Statements – Court Orders EPA Approval of Dicamba Vacated
Kansas Agribusiness Retailers Association (KARA) is aware of the June 3 decision in National Family Farm Coalition et al v. EPA handed down by the 9th Circuit Court of Appeals concerning dicamba product registrations. Three of the dicamba herbicides were included: XtendiMax®, Engenia and FeXapan Herbicide.
The Court found that USEPA failed to adequately account for risks and “made multiple errors in granting the conditional registrations.”
KARA has spoken with Kansas state regulators who instructed that the purchase and application of the products in Kansas is not yet prohibited. Seasonal application can continue until instructed otherwise.
KARA has recently spoken with EPA Region 7 and there has been no guidance from USEPA as of noon on Friday, June 5 to determine the applicability of the order outside of the 9th circuit.
KARA has also been in contact with product manufacturers, and will provide more information as it becomes available.
KDA Statement on Ninth Circuit Decision
The KDA pesticide and fertilizer program is aware of the June 3, 2020, decision by the Ninth Circuit of the U.S. Court of Appeals to vacate the registrations for certain dicamba products (XtendiMax, FeXapan and Engenia). At this time, no action has been taken in Kansas in regard to these products, as we await guidance from the Environmental Protection Agency on how to best implement that decision. Therefore, these dicamba products are still available for use in Kansas, and KDA will enforce the sales and applications of these products as they are currently registered in Kansas. We will make every effort to keep you informed with critical information as it becomes available.
BASF Statement on Ninth Circuit Decision
The Order issued on June 3 by the United States Court of Appeals for the Ninth Circuit vacating the registration of Engenia® herbicide and two other products is unprecedented and has the potential to be devastating to tens of thousands of farmers. These farmers have counted on over-the-top (OTT) applications of dicamba-based products, including Engenia herbicide, to control resistant weeds across tens of millions of dicamba-tolerant soybean and cotton acres.
Time is of the essence. Farmers have less than a month to protect millions of acres under threat from resistant weeds that could lead to significant revenue loss in an already challenging season.
We are currently reviewing the Order and are waiting on further direction from the U.S. EPA on actions they will take as a result of this Order. We will use all legal remedies available to challenge this Order and we remain committed to serving our customers with safe and effective crop protection solutions, including Engenia herbicide.
BAYER ASSESSING NEXT STEPS AFTER COURT RULING ON XTENDIMAX HERBICIDE REGISTRATION
On June 3, 2020, the U.S. Court of Appeals for the Ninth Circuit issued a ruling that vacates current U.S. registrations of certain low-volatility dicamba products, including XtendiMax® Herbicide. The ruling comes after a group of environmental organizations filed a petition with the Court challenging the U.S. Environmental Protection Agency’s 2018 registration decision.
We strongly disagree with the ruling and are assessing our next steps. We will also await direction from the EPA on actions it may take in response to the ruling.
Depending upon actions by the EPA and whether the ruling is successfully challenged, we will work quickly to minimize any impact on our customers this season. Our top priority is making sure our customers have the support they need to have a successful season.
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.
Know that Bayer stands fully behind XtendiMax. We are proud of our role in bringing innovations like XtendiMax forward to help growers safely, successfully, and sustainably protect their crops from weeds. We will continue working with the EPA, growers, academics, and others to maintain long-term access to this important tool.
Additional Background:
In 2019, a petition was filed in the U.S. Court of Appeals for the Ninth Circuit against the EPA for its decision in 2018 to extend the registration of low-volatility dicamba products, including XtendiMax. The petition was filed by the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America.
The petitioners requested the Court to vacate the current U.S. registrations of certain low-volatility dicamba products, including XtendiMax. The petitioners claim the EPA’s 2018 registration decision was based on insufficient evidence and therefore violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
In April 2020, the Court heard oral arguments on the petition. The EPA defended its science-based registration decision. While this petition was brought against the EPA, Bayer joined the case as an intervenor and helped defend the EPA’s science-based decision.
On June 3, 2020, the U.S. Court of Appeals for the Ninth Circuit issued a ruling that vacates current U.S. registrations of certain low-volatility dicamba products, including XtendiMax. The ruling comes after a group of environmental organizations filed a petition with the Court challenging the U.S. Environmental Protection Agency’s 2018 registration decision. We strongly disagree with the ruling and are assessing our next steps. We will also await direction from the EPA on actions it may take in response to the ruling.
The EPA conducted an extensive review and considered all relevant science prior to issuing the current registration for XtendiMax. In October 2018, the EPA extended the registration of XtendiMax and stated that “This action was informed by input from and extensive collaboration between EPA, state regulators, growers, academic researchers, pesticide manufacturers, and other stakeholders. EPA understands that dicamba is a valuable pest control tool for America’s growers.” The EPA’s informed science-based decision reaffirms that this tool is vital for growers and does not pose any unreasonable risks of off-target movement when used according to label directions.
XtendiMax was available to U.S. growers for the first time in the 2017 growing season. Since then, many U.S. soybean and cotton growers have added XtendiMax as one important component of their integrated weed management (IWM) programs. More than 90% of customers surveyed have reported satisfaction with the weed control XtendiMax has offered. Click here for videos of growers talking about their experience with XtendiMax.