Recently, the U.S. Court of Appeals for the 9th Circuit announced they are backing the Environmental Protection Agency’s Existing Stocks Order on June 8. A petition from the plaintiffs sought to invalidate that order, which would force farmers to halt all spraying of three dicamba-based products — XtendiMax, FeXapan, and Engenia.
The American Soybean Association is pleased that the court has chosen to support the EPA’s legal authority and deny a petition that sought to invalidate the EPA’s Cancellation and Existing Stocks Order. Congress has provided for the certainty needed by growers in critical times — like planting season right now — by equipping the EPA with the “existing stocks” authority it exercised in its June 3 guidance to growers.
Additionally, during its series of late evening orders on June 19, the court granted both CropLife America’s and a grower coalition’s requests to file an amicus brief. The grower request was filed June 16 by ASA, American Farm Bureau Federation, National Cotton Council of America, National Association of Wheat Growers, National Corn Growers Association, and National Sorghum Producers, and it supports the EPA’s existing stocks decision. That brief highlighted the devastating consequences that would result if the NGOs’ request were granted and growers could not use existing stocks.
The EPA’s long-established policy and practice under FIFRA provides for an orderly management of the distribution, sale, and use of existing stocks of a formerly registered pesticide product, including — as in this instance — in the context of vacatur. Immediately banning use of existing stocks of Xtendimax, Engenia, and FeXapan would have financially devastating consequences on America’s soybean growers, who have invested an estimated $3.35 billion for soybean seed in 2020 and hundreds of millions of dollars more in herbicides, labor, fertilizer and other costs, expecting that over-the-top applications of dicamba would remain lawful.
In a statement from BASF released today, “BASF is pleased that the United States Court of Appeals for the Ninth Circuit granted BASF’s emergency motion to intervene in the case vacating the registrations of three dicamba-based herbicides, including BASF’s Engenia herbicide. We are also pleased that the court’s decision will permit the continued use of existing stocks pending further court proceedings.
“However, as the Engenia registration remains vacated as a result of the Court’s original decision, we seek a recall and stay of the Court’s mandate until BASF has the opportunity to challenge that decision. We are committed to pursue all legal remedies available to ensure farmers have access to the safe and effective crop protection solutions they have come to rely on, including Engenia herbicide. BASF will also continue to pursue EPA re-registration of Engenia for the coming seasons.”
American growers and the public are fortunate that a proper administrative and judicial-review framework exists. Farmers use countless FIFRA-regulated pesticide products, including herbicides, insecticides and fungicides. They make planting decisions and significant, up-front financial investments based on the rules and regulations in place at the time plans are made. Soy farmers are dependent on those rules not changing in the middle of the game and are glad the court got it right in these orders.
