EPA says farmers can use dicamba through July

On June 8, the US Environmental Protection Agency canceled the registration of three herbicide products containing the chemical dicamba. Farmers will no longer be able to buy the products but can use their current stocks through July.

The agency order followed a June 3 ruling by the US Court of Appeals for the Ninth Circuit vacating the dicamba registration and saying the products, designed for use on soybeans and cotton engineered to tolerate the chemical, should not have been registered because of their tendency to drift and damage other crops. The herbicides, sold by BASF, Bayer Crop Science, and Corteva, were first registered for the 2017 growing season to help growers combat weeds that have developed resistance to glyphosate, also known as Roundup.

In a press release, the EPA says that allowing farmers to use their stocks “will mitigate some of the devastating economic consequences of the Court’s decision for growers.”

But George Kimbrell, legal director of the Center for Food Safety, a plaintiff in the lawsuit, says in a statement that “the order from EPA flies in the face of the Court decision holding dicamba-based pesticides unlawful.” The organization vowed to go back to court.

Because the herbicides are now unregistered, it is illegal to sell or distribute them, according to the EPA. But the agency says it has the authority to allow the use of already-purchased stocks under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

John Gustafson, an attorney at the law firm Keller and Heckman, says the language in FIFRA is ambiguous about the EPA’s authority to allow use of a pesticide when its registration has been vacated by a court that rules it should not have been permitted in the first place. In this case, he says, the EPA used a “creative interpretation of the law.”

The lawsuit over dicamba registration was first filed in 2017 by a coalition of farmer and health and safety advocacy groups. They refiled the suit after the EPA renewed the registration in 2018.

In 2017, dicamba herbicides damaged an estimated 1.5 million hectares of nontolerant soybeans when it drifted from fields where it was applied. The damage persisted in 2018, a year when more than half of US soybeans were planted with the tolerant variety, the court found. The damage to nontarget soybeans and other crops led the EPA and some state agriculture departments to tighten restrictions on the use of dicamba in 2018 and this year.

The court determined that the EPA’s registration of the herbicides violated FIFRA. It held that the EPA understated how much dicamba would be used by farmers and did not properly consider “substantial and undisputed” damage to other crops from the drifting chemical.

The verdict goes on to say that the EPA did not acknowledge the risk that label restrictions would not be followed and that, because of drift, farmers were forced to purchase dicamba-tolerant varieties to avoid crop damage. “Finally,” the court said, “EPA entirely failed to acknowledge the risk that dicamba use would tear the social fabric of farming communities,” as farmers blamed each other for damaged fields.

In an emailed statement, Bayer says it is working to obtain EPA registration for the 2021 season and beyond. But Gustafson says the court ruling means the company will have a tough time supporting its case that dicamba does not cause unreasonable adverse effects.