The Environmental Protection Agency has “flagrantly contravened” the Ninth Circuit’s June 3 order on three dicamba herbicides by continuing to allow over-the-top use on soybeans and cotton, the petitioners in the litigation argued in an emergency motion Thursday.
“There is no doubt the court intended to halt harmful OTT uses, which is, after all, what this case was about,” the National Family Farm Coalition, Center for Biological Diversity, Center for Food Safety and Pesticide Action North America said in the motion, which sought relief “by [the] earliest possible date.”
That relief: “The court should instruct EPA that the only uses vacated were the new uses approved conditionally in the 2018 decision: the OTT use of the products on dicamba-tolerant soybean and cotton,” the groups' motion says. “That clarifies that while the products will otherwise remain registered, vacatur prohibits the OTT uses on cotton and soybean from continuing.”
They also asked to hold EPA and Administrator Andrew Wheeler in contempt. “EPA did not take any reasonable steps to comply with the court’s order, only actions to defy and ignore it,” they 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 lead counsel George Kimbrell of the Center for Food Safety. “EPA needs a lesson in separation of powers and we're asking the court to give it to them."
EPA sent along a statement in response, saying its order "protects the livelihood of our nation’s farmers and the global food supply [and] is consistent with the agency’s authority" and the court's decision.
"EPA stands by its order and will vigorously defend against attempts to limit the agency’s authority to provide clarity and certainty to farmers," an EPA spokesperson said. "EPA’s order also protects health and the environment by providing a way for EPA to enforce the mitigation measures that EPA deemed crucial to the safe application of these products."
Center for Biological Diversity attorney Stephanie Parent, co-counsel for the petitioners, said the Ninth Circuit "does not have to allow a response, but they usually do on an expedited basis. But, in this case, we believe EPA’s flouting of the court’s ruling is so egregious, the court may act immediately. It’s hard to predict."
In its June 3 decision, the court said, “Extending the conditional registrations for OTT use of XtendiMax, Engenia, and FeXapan creates a substantial the risk that DT soybeans, and possibly DT cotton, will achieve a monopoly or near-monopoly.”
“The likely anti-competitive effect of the registrations would impose a clear economic cost, but the EPA at no point identified or took into account this cost,” the court said. EPA also “entirely failed to acknowledge the risk that OTT dicamba use would tear the social fabric of farming communities.”
Five days later, EPA issued a cancellation order that continued to allow use of existing stocks, until July 31, so long as they were in the possession of commercial applicators or growers.
EPA has “proceeded to allow business-as-usual OTT spraying” and has “made no effort to address or correct the significant errors of law or the well-established harms continued spraying is sure to cause,” the motion says.
The groups also contend that EPA “lacks authority to issue its ‘cancellation’ order because there is nothing to cancel here.” The court’s vacatur of the registrations “made null and void the 2018 new use decision allowing OTT dicamba spraying.”
“Judicial vacatur is not the same as pesticide cancellation,” the groups say. “OTT dicamba use was not cancelled: the new uses were vacated. The differences between vacatur and pesticide cancellation under (the Federal Insecticide, Fungicide, and Rodenticide Act) are significant: FIFRA cancellation is subject to extensive rules and process that have nothing to do with a judicial order. Vacatur is very different: setting aside or vacating voids the approval, returning the status quo ante before it was granted.”
In its order, EPA “purports to assess” the risks and benefits of allowing continued use — including by taking into account purchases of dicamba — but the groups said the appeals court already “directly resolved” those issues, “and they cannot be re-litigated, let alone nullified in an administrative order.”
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The order also “entirely ignores the court’s finding that EPA ‘substantially understated the risks that it acknowledged,’ and ‘entirely failed to acknowledge other risks,’" the groups said. "These harms include: the acreage of DT seed usage; the complaints understating dicamba drift damage; quantification of the amount of damage to non-target plants caused by OTT dicamba applications; the substantial infeasibility of compliance with label restrictions; the anti-competitive effect of a DT seed monopoly or near-monopoly; and the social cost of tearing apart the social fabric of farming communities.”
They say it was notable that the Ninth Circuit judges did not remand the matter to EPA, a sign that “there was nothing further in the way of rulemaking that EPA needed to do to implement its decision.” On its own, the court issued its mandate immediately, “showing its clear intent that use immediately halt as of the day of its decision.”
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June 12: This story has been updated with the statement from EPA and plaintiffs' counsel comment on potential Ninth Circuit action.
