On June 16, 2020, the U.S. Environmental Protection Agency (EPA), BASF, and Monsanto each filed a response to the petitioners’ emergency motion in the ongoing dicamba litigation in the U.S. Court of Appeals for the Ninth Circuit.
The petitioners filed an emergency motion on June 11, 2020, in response to the EPA’s June 8, 2020 final cancellation order for the three dicamba products: Xtendimax with Vaporgrip Technology (EPA Reg. No. 524-6 17), Engenia (EPA Reg. No. 7969-345), and FeXapan (EPA Reg. No. 352-9 13). The EPA issued its final cancellation order, which allowed for limited use, distribution, and sale of existing stocks of the three dicamba products, after the Ninth Circuit suddenly vacated the three dicamba products’ registrations on June 3, 2020. This decision was based on the court’s finding that substantial evidence does not support the EPA’s Oct. 31, 2018 decision to grant conditional registrations to the dicamba products for over-the-top application on dicamba-tolerant soybeans and cotton. The petitioners argue in their emergency motion that the EPA’s cancellation order is inconsistent with the court’s June 3, 2020 order vacating the three dicamba product registrations and that the EPA lacks authority to issue the cancellation order. The petitioners request that the court find the EPA in contempt, immediately enforce the court’s June 3, 2020 order “through appropriate relief,” and instruct the EPA that it cannot avoid the vacatur of over-the-top uses for the three dicamba products by issuing the cancellation order.
Each of the response briefs filed by the EPA, BASF, and Monsanto make similar arguments, including: (1) that the EPA’s cancellation order is consistent with the court’s June 3, 2020 order because it immediately canceled the dicamba registrations — as required by the order; and (2) that the cancellation order was necessary and expressly allowed under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to ensure that existing stocks of the newly unregistered products are used safely and appropriately for a limited period of time. The EPA, BASF, and Monsanto each note that there is no provision in FIFRA making the use of unregistered pesticides illegal; instead, FIFRA only prohibits the sale or distribution of unregistered pesticides. As such, they argue that in the absence of EPA’s cancellation order, the existing stocks of the canceled dicamba products could be applied by end-users in any manner — including in manners inconsistent with the current labeling — without violating FIFRA. Additionally, end-users would be unable to return the unregistered products to the registrant or ship the products for disposal without violating FIFRA (i.e., as such actions could be prohibited as “distribution” of an unregistered pesticide). The EPA also notes that it has consistently interpreted its existing stocks authority to apply whether a registration is canceled by administrative action or vacated by court order such as in Natural Resources Defense Council v. EPA, 676 F. Supp. 2d 307 (S.D.N.Y. 2009) and Pollinator Stewardship Council v. EPA, 806 F.3d 520 (9th Cir. 2015). In short, the EPA, BASF, and Monsanto argue that the EPA’s cancellation order was necessary to address and manage existing stocks of dicamba products that are no longer registered under or governed by FIFRA.
The respondents also argue that the court lacks jurisdiction to review the EPA’s cancellation order. The EPA and BASF state that the cancellation order is a separate administrative order, distinct from the now-vacated registrations and reviewable on its own merits in an appropriate district court. In its response, Monsanto echoes the EPA and BASF’s argument that the court lacks jurisdiction to review the cancellation order, noting that under the procedures established by Congress for judicial review of FIFRA orders, the courts of appeals have jurisdiction only over those FIFRA orders that follow a public hearing. Since there was no public hearing relating to the cancellation order, Monsanto argues that the petitioners must challenge the order in the district court.
The court is likely to issue a ruling in short order since the petitioners are seeking relief from the court within 21 days of filing the emergency motion pursuant to Circuit Rule 27-3. Until such time, farmers and other agricultural businesses will be negatively impacted by regulatory uncertainty on how to handle these dicamba products, as state, industry, and the EPA have issued daily — and at times, inconsistent — guidance on the Ninth Circuit’s order and the EPA cancellation order. The court order and regulatory uncertainty also come at a difficult time for the agricultural industry and farmers already struggling with the economic impact of the COVID-19 outbreak and looming state-enacted dicamba application cut-off dates.
The case is National Family Farm Coalition v. EPA, Case No. 19-70115, in the U.S. Court of Appeals for the Ninth Circuit.