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Cancel Order From EPA Over Dicamba Herbicides Answers Some Questions Concerning Court's Ruling

Dicamba damage
University of Arkansas

Though a federal appeals court ruling in early June overturned the Environmental Protection Agency’s approval of three variations of a controversial herbicide, the impact of the court’s decision was initially unclear.

The lawsuit that led to the decision, initially filed back in 2016 by the National Family Farm Coalition and three other organizations, argued the EPA’s registration of the dicamba-based herbicides violated both the Federal Insecticide, Fungicide, Rodenticide Act or FIFRA, and the Endangered Species Act or the ESA. Dicamba, used on genetically modified cotton and soybean crops, had previously been banned in Arkansas for allegedly causing widespread damage to non-tolerant crops.

Brigit Rollins is a staff attorney with the National Agricultural Law Center. She says by the time the initial lawsuit was being heard by the Ninth Circuit U.S. Court of Appeals, the 2016 registration for these herbicides, which only lasted for two years, had already expired.

“Those all got reregistered for use for over the top use in 2018. The plaintiffs were allowed to refile their case against these registrations, this time targeting the 2018 registrations. And they were making the same arguments that the 2018 registrations violated FIFRA and the ESA,” Rollins said.

The court’s ruling, issued on June 3, said the registrations did indeed violate one federal law. The next day, U.S. Secretary of Agriculture Sonny Perdue released a statement that disapproved of the ruling saying “I encourage the EPA to use any available flexibilities to allow the continued use of already purchased dicamba products.”

However, what the ruling didn’t say was what the next steps were concerning the use of those dicamba-based herbicides. Rollins says that direction later came from the EPA through a cancel order, which came out on June 8.

“That cancel order is important because it does tell us what can and what cannot be done with the pesticides following the ninth circuit’s ruling. So the cancel order says that now that these pesticides are no longer registered under FIFRA, it is not legal to sell or distribute them,” Rollins said.

According to the order, the sale of existing dicamba products by commercial applicators is allowed until August 1. Additionally, farmers can use said products until the same deadline. As far as the ruling’s impact on Arkansas farmers, Rollins says the state’s own cutoff date for spraying dicamba, which occurred on May 25 surpasses the new federal guidelines.

Though the EPA’s order did help clarify some concerns on the court’s ruling, Rollins says there are still questions remaining concerning the use of dicamba-based herbicides, including some about the Endangered Species Act, which the court did not weigh in on whether dicamba use also violated.

“A big question that we’ve seen…the Ninth Circuit did not reach that ESA argument so that argument or similar arguments about the ESA have been raised in other pesticide litigations. So I think that’s sort of the unanswered question there.  Will that issue ever be reached in a case and if it is, how will the court decide,” Rollins said.

According to Rollins, the registration on the three dicamba-based herbicides was initially set to expire at the end of the year. She says there is a possibility the same companies will try to re-register their products again in 2021, which could lead to another lawsuit.

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