UPDATE 2: Groups Seek Contempt Ruling Against EPA Over Dicamba Order; Is Enlist Next?
(Editor’s note: updated to include statements from BASF and Corteva and information about the pending Enlist Duo lawsuit)
If you thought the battle over dicamba use had been settled with the June 8 EPA order, think again.
The farming and conservation groups behind the initial legal action have asked the Ninth Circuit Court of Appeals to find EPA Administrator Andrew Wheeler in contempt for refusing to abide by the court’s order suspending use over the top applications of dicamba in dicamba-tolerant cotton and soybeans.
In response to the June 3 court ruling that vacated the labels for XtendiMax, Engenia and FeXapan herbicides, EPA issued an order allowing growers to use existing stocks of the products in their possession on June 3 through July 31.
In a statement issued late evening June 11, the groups stated, “…the court made clear that by wrongly approving use of the pesticide, the EPA is directly responsible for any harm to farmers – both those using dicamba and those whose crops have been damaged by it.”
In the statement, George Kimbrell of the Center for Food Safety and lead counsel in the case, said, “Trump’s EPA is so rogue it thinks it can blow off a federal court ruling that stops the damaging dicamba spraying in an administrative order. EPA needs a lesson in separation of powers, and we’re asking the court to give it to them.”
Last week, in response to a lawsuit filed by conservation groups and farmers harmed by dicamba drift, the court ruled that the Trump administration’s 2018 registration of these pesticide uses was unlawful.
In the emergency motion, the groups pointed out that the court could not have been any clearer in last week’s ruling and asked the court to enforce its ruling and hold Wheeler in contempt.
“It’s mind-boggling to see the EPA blatantly ignore a court ruling, especially one that provides such important protections for farmers and the environment,” said Stephanie Parent, senior attorney at the Center for Biological Diversity who is co-counsel in the case. “We’re asking this court to restore the rule of law at the Trump EPA.”
Companies React
On June 12, both BASF and Corteva filed emergency motions to intervene in the Ninth Circuit Court of Appeals June 3 ruling to vacate the registrations for the dicamba products, seeking an opportunity to demonstrate the ruling’s significant negative impact on U.S. agriculture and its customers.
“Taking this action during the height of the application season gives no regard to the significant investments farmers have made in their businesses and leaves them without viable options for the growing season,” said Paul Rea, Senior Vice President, BASF Agricultural Solutions North America, in a company statement. “Farming is difficult even in the best of times and remains challenging. Making this decision now, when weed resistance continues to threaten farming operations, is disastrous for our customers. Farmers have counted on applications of dicamba-based products to control troublesome weeds for decades, and they continue to need these tools now and in the future.”
Focus Shifts to Enlist
A June 11 report from DTN/Progressive Farmer confirmed suspicions about the groups’ next move, noting that they also have a pending lawsuit against Corteva’s Enlist Duo, the 2,4-D-choline and glyphosate premix herbicide. The lawsuit, filed in 2017, is also under review in the Ninth Circuit court but with a different panel of judges.
The report notes that there are similarities with the dicamba lawsuit, but that the body of evidence under review by the court is rather different for Enlist Duo than it was for dicamba. Hearings for the Enlist Duo case have been held, and the judges apparently have the necessary information in hand to make a ruling at any time.
Stay tuned.
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