Despite Court Ruling, EPA Allows Farmers to Use Existing Stocks of Banned Herbicide

Image: Jim Patrico/DTN

Yesterday, Bayer AG said it will scrap a nearly $1 billion project to produce the chemical dicamba in its Luling, Louisiana planet. This comes after the 9th U.S. Circuit Court of Appeals blocked the sale and use of the herbicide, stating that “the EPA substantially understated the risks related to the use of dicamba, a chemical found in herbicides sold by Bayer and rivals that are sprayed on genetically engineered soybeans and cotton.”

BUT, this week the Trump EPA also issued guidance stating that farmers can use existing supplies of an agricultural weed killer linked to crop damage, despite the 9th Circuit Court’s ruling.

Why This Matters: After the 9th Circuit’s decision, there remains confusion within the industry on if or how this court order will be enforced by state or federal pesticide regulators. EPA has not yet informed the states or registrants what legal steps the agency will take and thus state agencies have not enforced the ruling.

The pressure to restrict dicamba arose because the herbicide spreads and kills crops that are not genetically resistant to it. While total reports of contamination have fallen, they have declined sharply in states that imposed tough regulations on the pesticide, while increasing in states that have not.

The Legal Case: As Progressive Farmer explained, the 9th Circuit ruling was the result of a lawsuit first filed in 2017 by a group of farm and environmental groups, which argued that EPA violated both its governing law (the Federal Insecticide, Fungicide and Rodenticide Act, FIFRA), and the Endangered Species Act when it registered XtendiMax (Bayer’s formulation of dicamba).

  • The judges did not rule on the lawsuit’s Endangered Species Act claims. They only ruled that EPA violated FIFRA in multiple ways, largely by underestimating and understating the risks of dicamba herbicides used over a wide acreage, as well as ongoing off-target injury from 2016 through 2018.

The Future: Without the EPA providing ample guidance, it’s difficult to know when state regulatory agencies will begin to enforce the phase-out of dicamba. This is certainly an ongoing story.

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