In late October, 2020, the Environmental Protection Agency (“EPA”) announced that it had renewed the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”) registrations for three dicamba pesticides for growing seasons 2021 – 2025. The registration includes Bayer’s XtendiMax with VaporGrip Technology (“XtendiMax”), BASF Corporation’s Engenia Herbicide (“Engenia”), and Syngenta’s Tavium Plus VaporGrip Technology (“Tavium”), and makes changes to the labels that EPA had approved for these pesticides in 2016 and 2018. For a closer examination of the new registration decision, see here.
While the decision to register dicamba for an additional five years was welcomed by many in the agricultural industry, the regulation and use of dicamba remains a controversial topic. Since EPA announced its decision, one lawsuit has been brought challenging certain new restrictions included in the new labels. Additionally, a footnote in one of the regulatory documents accompanying the registration decision appears to alter EPA policy on the authority of states to regulate pesticide use under FIFRA.
Lawsuit from American Soybean Association
On November 4, 2020, the American Soybean Association and Plains Cotton Growers, Inc. (“the plaintiffs”) filed a lawsuit against EPA over the recent dicamba registration. In their suit, the plaintiffs allege that the registration violated both FIFRA and the Endangered Species Act (“ESA”) because the additional restrictions found in the registration went beyond EPA’s authority. Specifically, the plaintiffs are challenging the new buffer requirements and cutoff dates, alleging that neither is necessary to comply with the statutes.
Both plaintiffs represent groups of farmers who use dicamba-resistant cotton and soybean seeds along with dicamba pesticides. According to the plaintiffs, the buffer requirements and cutoff dates would diminish crop yields and cut productivity. The buffers required by the new registration include a 310-foot downwind application buffer, a 57-foot omnidirectional buffer, and a 240-foot universally controlling buffer. The plaintiffs argue that these would cause a significant acreage of farmland to be taken out of production for fear of violating the buffer rules. The national cutoff dates require that application of dicamba to soybeans stop on June 30 and to cotton on July 30. Because the pesticide has to be applied at a specific point during the growing cycle, the cutoff dates could prevent application on crops that were planted later in the growing season. Additionally, the plaintiffs argue that the buffers and cutoff dates are inconsistent with past practice. The buffers in the new registration are almost three times larger than the buffers imposed by the 2018 registration, and neither the 2016 or 2018 registrations included a national cutoff date.
The plaintiffs claim that neither the buffers or the cutoff dates are necessary for EPA to fulfill its statutory duties under FIFRA or the ESA. Under FIFRA, the EPA is required to ensure that the pesticides it registers will not cause “unreasonably adverse effects on the environment.” 7 U.S.C. 136a(c)(5). Under the ESA, all federal agencies including EPA are required to “insure that any action authorized . . . or carried out” by the agency “is not likely to jeopardize the continued existence of any endangered species or threatened species.” 16 U.S.C. § 1536(a)(2). The plaintiffs argue that neither the buffers or the cutoff dates are necessary to comply with either statute.
Finally, the plaintiffs argue that EPA’s findings under the ESA that registering the dicamba pesticides is “not likely to adversely affect” potentially affected species, and will have “no effect” on listed species are legally valid conclusions. This means that although the plaintiffs believe that the buffers and cutoff dates are unlawful and should be removed from the dicamba registration, they also believe that the underlying ESA conclusions are valid and should be upheld. The plaintiffs do not want the dicamba registration to be invalidated. At the time of this article’s publication, EPA has yet to file its answer to the complaint. However, that will be the next major filing to look out for as the lawsuit progresses.
EPA Policy Change
One aspect of the dicamba registration has the potential to reach beyond that registration and impact the regulation of all pesticides going forward. A footnote in one of the regulatory documents accompanying the registration decision reverses an EPA policy allowing states to impose more restrictive label requirements for pesticides through the use of FIFRA § 24(c) “special local needs” permits.
Under FIFRA § 24(c), states are allowed to require “additional uses of federally registered pesticides formulated for distribution and use within that State to meet special local needs.” In the past, EPA has interpreted that language to allow states to regulate pesticides both more broadly and more narrowly than at the federal level. Meaning that a state could use a 24(c) permit to either allow for an additional use that was not included in a pesticide’s label, or add use restrictions that were not in the label. Since 2017, states have relied on 24(c) to impose application cutoff dates for dicamba pesticides. In a guidance document currently still available on the EPA website, the agency notes that 24(c) permits may be used for “new method[s] or timing of application[.]” However, that option may not be available to states this coming year.
Along with the dicamba registration decision, EPA released a memorandum presenting the agency’s rationale in support of the registration. On page 20 of the document, a footnote states:
“FIFRA section 24(a) allows a state to regulate pesticides more restrictively than EPA under the state’s own authority. However, some of the states that have imposed cut-off dates on dicamba uses have done so under section 24(c). Section 24(c) only authorizes states to issue registrations for additional uses of federal registrations to meet special local needs; if states wish to impose further restrictions on the dicamba products, or any other federally registered pesticides, they should do so under section 24(a) of FIFRA.”
That language indicates that EPA will no longer allow states to use 24(c) permits to place additional restrictions on the use of any federally registered pesticide going forward. However, the language also indicates that any state seeking to require additional use restrictions for federally registered pesticides may be able to do so under FIFRA § 24(a). The text of that section states that “[a] State may regulate the sale or use of any federally registered pesticide […] in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.” In other words, FIFRA § 24(a) permits states to regulate the sale or use of federally registered pesticides so long as that regulation does not otherwise violate FIFRA.
However, it is not clear to what extent section 24(a) will permit states to regulate pesticide uses. The FIFRA regulations addressing state registration of pesticide products only address 24(c) permits. Additionally, there is very little case law concerning FIFRA § 24(a). A case issued by the United States Second Circuit of Appeals in 1989 addressed whether a New York state law designed to inform the public of where poisonous chemicals were being used violated FIFRA. In New York State Pesticide Coal., Inc. v. Jorling, 874 F.2d 115, 118 (2d Cir. 1989), the plaintiffs argued that the state law violated FIFRA § 24(b) which prohibits states from imposing “any requirements for labeling or packaging in addition to or different from” those approved by EPA. The court disagreed with this argument, concluding that the New York state law was not an additional labeling requirement prohibited by FIFRA § 24(b), but rather was an example of a state regulating the “sale or use” of a pesticide allowed under FIFRA § 24(a). From that decision, it seems likely that a state could impose additional restrictions on dicamba use, so long as those restrictions did not alter or contradict the label approved by EPA. However, the holding from New York State Pesticide Coal., Inc. v. Jorling is only legally valid within the Second Circuit jurisdiction. Ultimately, FIFRA § 24(a) is broadly written and lacks specific clarity. That could be a challenge to state regulators seeking to impose additional use restrictions under 24(a). Without clearer boundaries, states may have a hard time figuring out what actions 24(a) allows them to take, and it could fall to courts to determine when a state has appropriately regulated the sale or use of a pesticide. For farmers, that may bring a certain level of uncertainty into determining what a state’s requirements for using a particular pesticide are.
While EPA’s change in policy may ultimately prevent states from using 24(c) permits to impose additional restrictions on pesticide use, it likely will not prevent states from using their own rulemaking measures to impose such restrictions. For example, the Arkansas cutoff date for dicamba application of May 25 will likely not be affected by the policy change because that cutoff date has gone through a state rulemaking process instead of being authorized through a 24(c) permit. Other states that wish to impose additional restrictions to federally registered pesticides may still be able to do the same.
The lawsuit filed by the American Soybean Association is still in its earliest stages. EPA has yet to file its response, and at this point it is totally uncertain what the outcome of the case will be. If the plaintiffs are successful, the buffer requirements and the national cutoff dates could be voided. Whether that would lead to EPA establishing similar, but less restrictive requirements is unclear. If the plaintiffs are unsuccessful, then the label would most likely remain as is. While this lawsuit is currently the only case challenging the new dicamba registration, it is unlikely to stay that way. The Center for Food Safety has stated that it intends to challenge the registration.
It is also unclear what will come of EPA’s policy change concerning 24(c) permits. Other avenues for imposing additional restrictions on the use of pesticides remain open to states, although the extent to which states can regulate under FIFRA § 24(a) is unclear. While no lawsuit has yet been filed challenging EPA’s new position on 24(c) permits, it is possible that such a challenge could be brought. If it is, the outcome of such a lawsuit could provide additional insight into the boundaries of state’s authority to regulate pesticides under FIFRA § 24.
To read the complaint in American Soybean Ass’n v. Wheeler, click here.
To read EPA’s memorandum in support of the dicamba registration decision, click here.
To read the decision in New York State Pesticide Coal., Inc. v. Jorling, click here.
To read the text of FIFRA, click here.
To read the FIFRA regulations concerning state registration of pesticides, click here.
For additional information EPA’s policy change, see here for a thorough article from Progressive Farmer.
For additional National Agricultural Law Center resources on pesticides, click here.