Corteva, BASF File Motions to Intervene in Dicamba Case
June 15, 2020 Corteva Inc. and BASF filed motions on Friday to intervene in the U.S. Court of Appeals for the Ninth Circuit decision to vacate the U.S. Environmental Protection Agency’s registration of three dicamba herbicides on June 3.
EPA subsequently issued a final cancellation order for XtendiMax (Bayer), Engenia (BASF), and FeXapan (Corteva), prohibiting the sale of the products, while permitting use of existing stocks under certain circumstances through July 31. Syngenta’s Tavium dicamba product remains unaffected.
BASF said it made the request to intervene “after careful consideration of the sudden and severe financial impact vacating the registration has had on farmers during this critical application time, when farmers now have less than a month to protect millions of acres under threat from resistant weeds.”
BASF said the Ninth Circuit’s decision has caused “immediate chaos among the agricultural community and threatens the livelihood of countless U.S. farmers. Seeking to make matters worse, the challengers have now asked the Ninth Circuit to undo the EPA’s order which implemented the panel’s decision and addressed the uncertainty it caused. BASF must act to protect its interests and those of its customers.”
“Taking this action during the height of the application season gives no regard to the significant investments farmers have made in their businesses and leaves them without viable options for the growing season,” said Paul Rea, Senior Vice President, BASF Agricultural Solutions North America. “Farming is difficult even in the best of times and remains challenging. Making this decision now, when weed resistance continues to threaten farming operations, is disastrous for our customers. Farmers have counted on applications of dicamba-based products to control troublesome weeds for decades, and they continue to need these tools now and in the future.”
Corteva said it was was not a party to the lawsuit, and until June 3, the case appeared to involve only Bayer’s XtendiMax registration. Nevertheless, the court vacated the FeXapan registration along with those of XtendiMax and Engenia.
Corteva said it is “seeking to intervene to preserve our rights and to support the rights of customers to use the impacted dicamba weed control technologies. We believe dicamba is an effective weed management tool for farmers when used according to the label. We also seek to preserve the role of the U.S. EPA to administer the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA), including granting or cancelling crop protection product registrations, for the benefit of agriculture and society.”
Plaintiffs’ Contempt of Court Request
On Thursday, the plaintiffs in the case — the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America — asked the Ninth Circuit court to find EPA Administrator Andrew Wheeler in contempt for “refusing to abide by a federal court order suspending use” of dicamba. While EPA cancelled the product registrations, it is permitting use of existing stocks through July 31.
As of Monday morning, the court has not made a decision regarding the request. Meanwhile, dicamba application cut-off dates loom. In Illinois, the largest soybean-producing state in the United States, the last day to apply dicamba is now June 25. The cut-off date in Indiana and Minnesota is June 20, while North and South Dakota have June 30 cut-offs.
According to the Center for Food Safety, in approving ongoing use of dicamba through July, Wheeler cited what he asserted was the harm the court’s ruling would have on farmers using dicamba. But the court made clear that by wrongly approving use of the pesticide, the EPA is directly responsible for any harm to farmers — both those using dicamba and those whose crops have been damaged by it, it said.
“Trump’s EPA is so rogue it thinks it can blow off a federal court ruling that stops the damaging dicamba spraying in an administrative order,” said George Kimbrell, of the Center for Food Safety, lead counsel in the case. “EPA needs a lesson in separation of powers and we’re asking the court to give it to them.”
“It’s mind-boggling to see the EPA blatantly ignore a court ruling, especially one that provides such important protections for farmers and the environment,” said Stephanie Parent, a senior attorney at the Center for Biological Diversity who is co-counsel in the case. “We’re asking this court to restore the rule of law at the Trump EPA.”
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