The Environmental Protection Agency’s decision to register dicamba for use on soybeans and cotton is facing another lawsuit from the same groups that succeeded in convincing the 9th U.S. Circuit Court of Appeals to vacate registrations earlier this year.
The lawsuit by environmental groups and the National Family Farm Coalition is the latest to take on the agency for its dicamba decision. The American Soybean Association and Plains Cotton Growers also have challenged the decision, alleging that expanded buffer zones to protect endangered species and downwind crops from dicamba applications will severely cut into their crop acreage and that cutoff dates will heighten weed pressure.
In addition, a group of states has filed a lawsuit challenging the agency’s rule on application exclusion zones, which are required to protect people in areas where pesticides are being applied. And environmental groups last week filed their opening brief in 9th Circuit litigation seeking to block EPA’s registration for glyphosate.
The Center for Food Safety, Center for Biological Diversity, Pesticide Action Network North America joined the National Family Farm Coalition in filing a petition in the California-based appeals court Monday, seeking an order vacating five-year unconditional registrations for the dicamba herbicides Xtendimax and Engenia, registered by Bayer and BASF, respectively, and the extension of the registration for Syngenta’s Tavium.
They contend EPA did not provide “substantial evidence” under the Federal Insecticide, Fungicide, and Rodenticide Act that use of the herbicides would not cause “unreasonable adverse effects,” or consult under the Endangered Species Act with federal wildlife agencies about impacts on endangered species.
Nor did EPA provide the public an opportunity to comment on a decision contained in a footnote in the registration decision to eliminate the longstanding use by state pesticide agencies of a FIFRA provision that has allowed agencies to restrict pesticide use within state borders, including the use of cutoff dates for spraying. State pesticide agencies have expressed their opposition to the change.
The groups’ petition to the 9th Circuit does not go into extensive detail about their legal claims, which will be expanded on when the case goes to briefing. In a news release announcing the suit, they said EPA “again failed in its legal duties to ensure that the pesticide would not cause unreasonable harm to farmers and farming communities as well as to the environment and hundreds of endangered species.”
"Less than six months ago, the Ninth Circuit resoundingly rejected Monsanto's and EPA's arguments about this pesticide, detailing its substantial drift harms," said George Kimbrell, legal director of Center for Food Safety and counsel in the case. "Rather than do what the law and science requires, the Trump administration has again unlawfully promoted pesticide corporations' profits over protecting the interests of farmers or the environment. So they are getting what they deserve this holiday season: coal in their stockings and a federal lawsuit."
The 9th Circuit’s decision in June vacating registrations for Xtendimax and Engenia found EPA had substantially understated or failed to consider the social and economic costs of allowing continued use of the herbicides. The court ultimately did not issue a specific order prohibiting use for the rest of the growing season, and EPA said existing stocks could be used.
Syngenta, Bayer and BASF pushed back on the lawsuit. Syngenta said it was reviewing the complaint but said, “Regarding steps taken for drift, Tavium is the first and only dicamba premix herbicide on the market [and] delivers a combination of dicamba and S-metolachlor, offering two effective sites of action for control of key weeds in dicamba-tolerant soybeans and cotton,” Syngenta's Paul Minehart, head of crop protection communications for North America, said.
Minehart noted EPA has required that a volatility reduction agent be included with all applications, extended buffer zones required for applications, and imposes cutoff dates of June 30 for soybeans and July 30 for cotton. “Throughout the first part of 2021, Syngenta will be running several Dicamba specific training webinars,” he said, providing a web link.
Bayer, meanwhile, said it also was looking at the lawsuit, which it said “has no immediate impact on our ability to bring XtendiMax to growers this season or on growers’ ability to use XtendiMax this season. Growers have been clear how vitally important this tool is for their weed-management programs.”
The company said the latest registration decision “is based on a significant amount of additional data and learnings from recent seasons, and the new product label includes new measures to help growers use the product even more successfully going forward. We believe this new registration and product label effectively address the concerns raised by the court earlier this year.”
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BASF said it was aware of the petition and that it has “worked with the EPA to provide them with all data that they need to make a science-based registration decision that satisfies the applicable statutory criteria and addresses the concerns highlighted by the 9th Circuit Court earlier this year. BASF has a strong interest in defending our Engenia herbicide registration and are evaluating our legal options. We remain fully committed to ensuring growers have access to the crop protection solutions they have come to rely on, including Engenia herbicide.”
Glyphosate brief filed
Groups suing over EPA’s interim registration decision on glyphosate said in their opening brief in the 9th Circuit that EPA’s cost-benefit analysis “consists of a single sentence, where EPA completely fails to weigh the substantial costs of registration: among them, costs to farmers from the epidemic of glyphosate-resistant weeds and costs to wildlife exposed to spraying, especially crucial pollinators and iconic Monarchs.”
“EPA entirely failed to consider and assess the significant economic costs resulting from widespread glyphosate use,” the groups said. “These costs include both glyphosate-resistant weeds and glyphosate drift damage.”
Although it announced new measures to address spray drift, including a prohibition on spraying during temperature inversions and other application restrictions, “at no point did EPA actually assess the efficacy of these mitigation measures on which it predicated its determination,” the groups’ brief said.
Application exclusion zone lawsuit
Attorneys general from New York, Maryland, Illinois, California and Minnesota have sued EPA over its Oct. 30 AEZ rule, which modified a 2015 rule so that the AEZ “it is only applicable and enforceable on an agricultural employer’s property and does not extend to adjacent areas, and no longer applies to immediate family members of farm owners,” they said in a news release. “The rollback also allows pesticide applications to occur while individuals not employed by the farm are present.”
EPA did not justify the changes through use of an adequate cost-benefit analysis, the complaint says. “EPA’s analysis of costs and benefits fails to justify the changes to the [AEZ]; the agency’s explanation of the basis for these changes runs counter to the evidence before the agency; and EPA has entirely ignored its obligation to identify and address the disproportionately high and adverse effects of this policy change on minority and low-income populations,” the complaint says.
States will incur additional compliance and enforcement costs associated with the rule, they said.
“It is likely that any increase in pesticide exposure caused by the final rule will in turn increase uncompensated care costs for public and private hospitals in New York,” the lawsuit says.
Asked about the lawsuits, EPA said it does not comment on ongoing litigation.
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