By Peggy Hall
The dicamba roller coaster ride continues, with a statement issued by the Ohio Department of Agriculture clarifying that the use of XtendiMax, Engenia, and FeXapan dicamba-based products in Ohio will end as of June 30, 2020.
Even though the U.S. Environmental Protection Agency has issued an order allowing continued use of the products until July 31, use in Ohio must end on June 30 because the Ohio registrations for the three dicamba-based products expire on that day.
The Ninth Circuit Court of Appeals vacated the registration of the dicamba products June 3. In doing so, the court stated that the EPA had failed to perform a proper analysis of the risks and resulting costs of the products.
Understated
According to the court, the EPA substantially understated the amount of acreage damaged by dicamba and the extent of such damage, as well as complaints made to state agriculture departments.
The court determined that EPA had also entirely failed to acknowledge other risks, such as the risk of noncompliance with complex label restrictions, economic risks from anti-competition impacts created by the products and the social costs to farm communities caused by dicamba versus non-dicamba users.
Rather than allowing the EPA to reconsider the registrations, the court vacated the product registrations altogether. The EPA issued a cancellation order for the three products June 8, stating that distribution or sale by the registrants is prohibited as of June 3.
Products
But the agency also decided to examine the issue on the minds of many farmers: what to do with the products.
Applying its “existing stocks” policy, the EPA examined six factors to help it determine how to deal with stocks of the product that are in the hands of dealers, commercial applicators, and farmers.
The EPA concluded that those factors weighed heavily in favor of allowing the end users to use the products in their possession, but that use must occur no later than July 31, and that any use inconsistent with the previous label restrictions is prohibited.
ODA guidance
Despite the EPA’s cancellation order, however, the Ohio Department of Agriculture is the final arbiter of the registration and use of pesticides and herbicides within Ohio. ODA waited for the EPA to act on the Ninth Circuit’s ruling before issuing its guidance for Ohio users of the dicamba products.
In its guidance, ODA stated that after careful evaluation of the court’s ruling, US EPA’s Final Cancellation Order and the Ohio Revised Code and Administrative Code, as of July 1, these products will no longer be registered or available for use in Ohio unless otherwise ordered by the courts.
While use of already purchased product is permitted in Ohio until June 30, further distribution or sale of the products is illegal, except for ensuring proper disposal or return to the registrant. Application of existing stocks inconsistent with the previously approved labeling accompanying the product is prohibited. But the roller coaster ride doesn’t necessarily end there.
Remaining issues
Several dangling issues for dicamba-based product use remain: we’re still waiting to see whether the plaintiffs who challenged the registrations (the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity and Pesticide Action Network North America) will also challenge the EPA’s cancellation order and its decision to allow continued use of the products, and will request immediate discontinuance of such uses.
Bayer Crop Science, as an intervenor in the Ninth Circuit case, could still appeal the Ninth Circuit’s decision, as could the EPA. All of these orders add complexity to the issue of liability for dicamba damage.
That issue has already become quite controversial, often pitting farmer against farmer and requiring the applicator or damaged party to prove adherence to or violation of the complicated label restrictions.
Insurance
But the Ninth Circuit’s attention to the risks of adverse impacts from the products raises additional questions about whether an applicator who chooses to use the products is knowingly assuming a higher risk, and whether a liability insurance provider will cover that risk.
For this reason, growers may want to have a frank discussion with their liability insurance providers about coverage for dicamba drift. The dicamba roller coaster ride will surely continue.
No federal order
It appears that there will not be an immediate federal order to cease use of dicamba, despite the emergency motion filed by the National Family Farm Coalition June 11 that asked the Ninth Circuit to void the EPA’s order that allow use of existing stocks.
Since then, the Ninth Circuit Court of Appeals has directed the EPA to respond to the emergency motion, giving the agency until the end of the work day on June 16 to do so. The court also directed the coalition to then file a reply to the EPA’s response by the end of the workday on June 18.
For the time being, then, the court of appeals has not taken any further action that would disallow ODA’s allowance of the use of dicamba in Ohio until June 30.
However, as I mentioned in my last blog post on the Ohio Ag Law Blog, it would be wise for applicators to check in with their insurers to determine whether their insurers will cover a drift incident given the “vacated” registration status of XtendiMax, FeXapan and Engenia. Some insurers have already indicated that they will not ensure coverage.
Intervention
Be aware, also, that Corteva Agriscience (maker of FeXapan) and BASF (maker of Engenia) have filed motions to intervene in the case.
Although it’s doubtful that the court will allow intervention at this point in the process, the motions suggest that the three companies (Bayer Crop Science is already an intervenor in the case) are planning an appeal of the Ninth Circuit’s decision to vacate the registrations. That appeal would go to the U.S. Supreme Court.
(Peggy Hall is an associate professor and field specialist in agricultural and resource law with Ohio State University.)
