On February 6, a federal court in Arizona vacated EPA’s 2020 registrations for dicamba products to be used in over-the-top applications in cotton and soybeans. This effectively means the agricultural community will be unable to apply XtendiMax (Bayer), Engenia (BASF), and Tavium (Syngenta) for the upcoming 2024 growing season, until the EPA can re-review the matter.
In reviewing the case, the court found that EPA to be in violation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) when it re-authorized dicamba back in 2020. “Being aware of the practical effects of vacatur and difficulties these growers may have in finding effective and legal herbicides to protect dicamba-tolerant crops due to vacatur, the court nevertheless found the seriousness of the agency error, including in part its failure to assess risks and costs for non-users of over-the-top dicamba compelled vacatur,” said the court in its ruling.
Naturally, the companies that produce dicamba brands were disappointed in the ruling.
“We respectfully disagree with the ruling against the EPA’s registration decision, and we are assessing our next steps,” wrote Bayer in a statement released to the press. “We also await direction from the EPA on important actions it may take in response to this ruling.”
This marks the second time dicamba’s approval from EPA has been successfully challenged and vacated in court. Back in mid-2020, the agency’s original authorization for the herbicide was vacated by the U.S. Court of Appeals for the Ninth Circuit. By the end of October 2020, however, the EPA was successful in re-authorizing dicamba for use. Still, this decision did lead one manufacturer, Corteva, to discontinue production of its dicamba brand FeXapan.
Whether or not EPA can react quickly enough to once again re-authorize dicamba for over-the-top use for the 2024 growing season remains an open question at this time. According to industry sources, dicamba-tolerant soybean represented approximately 20% of all soybean cropping system sales during 2023, and cotton varieties tolerant to dicamba represented more than 90% of all varieties planted in 2023. Growers may now have to consider alternatives such as Roundup Ready or Enlist instead.
The National Cotton Council quickly issued a statement expressing its disappointment in the ruling:
“The National Cotton Council is extremely disappointed in a ruling by the Arizona Federal court that vacates the label for over-the-top use of dicamba products for the 2024 crop. The impacts of this ruling will be felt across the Cotton Belt as dicamba-tolerant varieties account for more than 75% of U.S. cotton acres.
“The ruling comes at an especially problematic time of the year as many producers have already made their cropping decisions, secured seed, and are doing preparatory field work. The timing of this ruling also will not allow for the production of seed with alternative herbicide technology in time for 2024 planting. Without widely available alternatives, losing the foundational herbicides in the dicamba-tolerant weed control system will put millions of acres in jeopardy of reduced production. The loss of over-the-top dicamba products exacerbates an already difficult economic situation with current prices below the costs of production.
“We urge EPA to immediately appeal the ruling. If allowed to stand, the court’s decision is another blow that will stifle the development and adoption of new technologies that not only increase productivity but bring forth environmental benefits such as the reduction of greenhouse gas emissions. In addition, we urge EPA to move quickly in exploring all available options to mitigate the economic damage that will result if growers do not have access to this critical crop protection product.”
From the Agricultural Retailers Association:
“ARA disagrees with this decision,” said Daren Coppock, ARA President and CEO. “It removes a determination that should be made by a science-based regulatory agency to a federal court, and the timing of the decision will be extremely disruptive to ag retailers, distributors, manufacturers and farmers who made plans to use these products in 2024.
“People have different opinions about whether OTT dicamba should be registered and used. But surely we can agree that we’re all better off – including consumers and the environment – if these decisions are made by regulators with scientific expertise during the registration review process rather than by the federal courts or activist litigators which lack that expertise.
“The timing of the decision is problematic. Farmers have already made their decisions about what varieties of cotton and soybean seed they want to plant in 2024, and retailers are already stocking not only the seed but also the herbicides these growers will need for their systems. A grower who chooses dicamba-tolerant seed is also choosing to use a dicamba product in their weed control program; otherwise they would not buy dicamba-tolerant seed. This court decision, issued after those plans have been made and while retailers are procuring the products necessary to fulfill them, comes at the worst possible time in the season.”
Specialists: Focus on Residuals and Glufosinate
“I think I made a mistake by taking biochemistry and biology in school rather than going to law school,” quipped Larry Steckel, University of Tennessee Extension Weed Specialist, during the University of Tennessee Cotton Forum on February 7. “Two of our biggest challenges right now are resistance and regulation, and it’s going to be more and more cumbersome as we move ahead.”
Steckel notes that EPA is already challenged with updating labels for virtually every regulated product, with most changes coming in 2025. These new processes are also contributing to registration delays of new pesticides.
Now the waiting begins for EPA directions on the dicamba ruling, specifying what growers and retailers can and cannot do with product already on the farm and in the distribution channel – similar to the 2020 ruling.
Meanwhile, growers who are finalizing their planting decisions may need to make some adjustments to their plans. Steckel offers some initial recommendations, emphasizing the need for residuals and timely applications of Liberty herbicide:
- Start with clean fields at planting
- Use overlapping residual products at planting and in sequential post applications
- Utilize Zidua via fertilizer applications
- Apply timely, sequential applications of Liberty
- Consider hooded applications of products such as Diuron + MSMA, Paraquat + Valor
- If necessary, consider shifting to Enlist varieties and management program.