Court Challenges a Wake-Up Call for Herbicide Technologies

If anyone harbored illusions about unchallenged use of key herbicide products, then June 3 should have been a wake-up call.

That’s the day the U.S. Ninth Circuit Court of Appeals ruled to vacate the labels for XtendiMax, Engenia and FeXapan dicamba formulations, leaving growers questioning what they could and couldn’t do to protect their crops at a critical time for weed management. Thankfully, within a few days, EPA issued a cancellation order allowing growers to use existing stocks of the products in their possession through July 31 – a move praised by the National Cotton Council and other grower trade organizations, and one that withstood additional legal challenges by the groups that filed the initial lawsuit.

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A similar legal challenge by the same groups also targeted Enlist Duo herbicide. But, in a split decision announced July 22, the judges at the same Ninth Circuit Court upheld the EPA registration of Enlist Duo for over-the-top use on Enlist cotton, corn and soybeans, dismissing all but one of the plaintiffs’ arguments and remanding EPA to address evidence concerning possible harm to monarch butterflies and whether the registration of Enlist Duo will lead to an unreasonable adverse effect on the environment.

Then, in early August, four U.S. Senators introduced legislation that would ban organophosphates, neonicotinoids and paraquat herbicides, restrict the use of emergency exemptions outside a product’s label, and allow citizens to petition the EPA to designate some pesticides as “dangerous” – which could lead to suspension of their registrations.

“It is clearly a signal of the environment we are in and what we can expect to come,” said Dr. Gary Adams, president/CEO of the National Cotton Council during a recent discussion on the Cotton Companion podcast. “We’ve seen this in court actions in the past, and now we’re seeing it in legislation. We have to be diligent in making sure the appropriate facts are out there, because it’s going to continue to be a battle. In some ways, it rolls up into some of the cotton industry’s sustainability programs and efficient use of resources.”

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What’s Next?

Following the court ruling vacating the dicamba labels, Extension weed specialists and growers began reviewing alternative weed control program options that may be needed should the dicamba products be unavailable for 2021. But the primary work is now focused on providing the information and research needed to revive and revise the vacated product labels.

EPA already planned to review the dicamba registrations by the end of 2020. That process is still on schedule.

“We have been in communication with EPA, and they are moving forward with their internal processes to put together a label for 2021,” explained Adams. “We will certainly be plugging into that process any way that we can. We will be conveying information on the importance of dicamba to U.S. cotton producers and what the economic impact would be if that product is not available for use in 2021. We hope EPA will move ahead in a timely manner.

“I would encourage producers to be mindful of new restrictions that will likely be in place once they see the new label,” he cautioned. “We have to be good stewards of those products in order to be able to keep them going forward.”

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