A request to hold the U.S. Environmental Protection Agency in contempt of a June 3 Ninth Circuit Court of Appeals order to vacate registrations of the weed killer dicamba was denied Friday.
Dicamba is blamed for damages to millions of acres of crops and natural areas in recent years. The panel of judges ruled earlier this month that the EPA did not have enough evidence to support its approval of the registrations. The judges ruled that the agency also underestimated and ignored risks posed by the herbicide.
In the June 3 ruling on behalf of the three-judge panel, Judge William Fletcher wrote that the court’s decision was difficult for farmers, who have already planted this year’s crop thinking the herbicide would be available. About two-third of U.S. soybean crops and more than half of cotton crops are dicamba-tolerant.
On June 8, the EPA issued a cancellation order for the herbicide, versions of which are made by Bayer, BASF and Corteva, but allowed continued application through July 31.
The National Family Farm Coalition petitioned the court to hold the EPA in contempt because the agency is allowing farmers to use these versions of dicamba until the end of July.
“EPA cannot get away with allowing the spraying of 16 million more pounds of dicamba and resulting damage to millions of acres, as well as significant risks to hundreds of endangered species,” the group wrote in its filing.
Dicamba, which has been sprayed since the 1960s, has skyrocketed in use in recent years, after Monsanto introduced new genetically modified soybean and cotton seeds that could withstand being sprayed by the herbicide. The seeds were designed to replace Monsanto’s Roundup-Ready crops, as many weeds had started developing resistance to glyphosate, which is the active ingredient in Roundup.
Since the 2017 growing season, thousands of farmers have filed complaints about crop damage caused by dicamba, and Bayer, which bought Monsanto in 2018, faces hundreds of lawsuits over the herbicide. Earlier this year, a federal jury ruled Bayer and BASF, which makes a version of the herbicide, must pay a Missouri peach farmer $265 million for damage incurred on his farm.
The EPA’s decision could make it so farmers are not without the herbicide dicamba at any point. The two-year registration that was vacated by the Ninth Circuit was set to expire later this year, and Bayer has said it is working to get dicamba re-approved for the 2021 growing season.
In its filing last week, BASF said that about 25 percent of the dicamba purchased for this growing season had not yet been sprayed when the Ninth Circuit vacated the registration, and most of the herbicide would be sprayed within the next 30 days. Each day that goes by, more dicamba is sprayed.
Still, as the court battle continues, large investments made by Bayer, which bought Monsanto in 2018 for $63 billion, and BASF remain uncertain.
On Tuesday, Bayer announced it is canceling a $1 billion investment in a new facility to produce dicamba in Luling, Louisiana. The company said the decision is unrelated to the court’s ruling and is instead because of a global overcapacity of dicamba.
In a court filing last week, BASF said if dicamba is banned, it would have to shut down its own dicamba production facility in Beaumont, Texas. In the five years leading up to the launch of Engenia, BASF’s version of dicamba, the company said, it spent $370 million improving the facility.
BASF and Corteva, an agribusiness company owned by DowDupont, filed motions earlier this month seeking to intervene in the case, after the court vacated the registrations of their dicamba herbicides. Bayer was already involved in the case.
In the filing on Tuesday, lawyers for the EPA argued that spraying a pesticide that is not registered is not illegal; instead, it is only illegal to buy or sell an unregistered pesticide. The cancellation order makes using the herbicide illegal, but only after July 31. The EPA also said it anticipated illegal applications of dicamba could be a problem if the herbicide is immediately banned.
“When a registration is vacated, misuse of that product is no longer a violation of FIFRA,” the filing said. “The Cancellation Order addresses this indirect and potentially disruptive environmental harm. The Order plugs a regulatory gap by ensuring that existing stocks of these newly-unregistered pesticides are used safely and appropriately, and only for a limited period of time.”
The EPA also argued that the Ninth Circuit does not have jurisdiction over the decision because it is a separate administrative order than the registration that was vacated.
Lawyers for Bayer, intervening on behalf of the EPA, also said that the agency made the decision by balancing the damage of continued use of the herbicide through the summer versus the harm to farmers who have already planted dicamba-tolerant soybeans and have weeds that could cost farmers billions in losses.
