On June 3, 2020, a three-judge panel of the United States Court of Appeals for the Ninth Circuit issued its opinion in Nat’l Family Farm Coal. v. U.S. Envtl. Prot. Agency, No. 19-70-115 (9th Cir. 2020) vacating the federal registrations of three dicamba-based herbicides. The suit was filed by a coalition of environmental groups in 2019, challenging the Environmental Protection Agency’s (“EPA”) 2018 registrations of “XtendiMax With VaporGrip Technology” (“XtendiMax”), “DuPont FeXapan Herbicide” (“FeXapan”), “Engenia Herbicide” (“Engenia”). XtendiMax is manufactured by Bayer (formerly Monsanto Company), FeXapan is manufactured by Corveta (formerly DuPont), and Engenia is manufactured by BASF Corporation (“BASF”).
In their case, the plaintiffs argue that the registrations should be vacated because they violated both the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) and the Endangered Species Act (“EPA”). According to the court, the registrations violated FIFRA because the registrations were not supported by substantial evidence. Since it concluded that the registrations violated FIFRA, the court did not go on to consider whether the regulations also violated the ESA.
The decision from the Ninth Circuit is the latest legal development to take place since EPA initially registered XtendiMax for use in 2016. Prior to 2016, dicamba-based pesticides were generally used as pre-emergents, meaning that they were applied directly to weeds prior to planting crops as a burndown. This is because dicamba, a chemical pesticide that targets broad-leafed plants and is used against stubborn weeds, is subject to volatility, meaning that it easily becomes airborne and drifts off-target during and following application. In 2015, Monsanto Company (“Monsanto”) released a line of soybean and cotton seeds that were genetically engineered to be resistant to dicamba. Monsanto intended for farmers to plant the seeds and then spray a dicamba-based herbicide over the top (“OTT”) of the crops to kill weeds that grew later in the planting season. To that end, Monsanto developed a low-volatility dicamba-based herbicide which was registered under the name XtendiMax in 2016. Other pesticide manufacturers followed suit.
The plaintiffs in Nat’l Family Farm Coal. v. U.S. Envtl. Prot. Agency initially filed this lawsuit in 2016, challenging EPA’s 2016 registration of XtendiMax. That case was ultimately dismissed because by the time the court issued its opinion, the 2016 registration was no longer valid. The registration was set to expire two years after it was adopted unless EPA re-registered the pesticide. EPA registered XtendiMax, FeXapan, and Engenia for use in 2018. Because the case initially filed by the plaintiffs challenged the 2016 registration which had expired by the time the court issued an opinion, the case was dismissed. However, the plaintiffs were permitted to refiled their claim against the 2018 registrations on an expedited schedule. The plaintiffs refiled in 2019, claiming that the 2018 registrations violated FIFRA and the ESA. To read more about the specific arguments made by the plaintiffs, click here.
Ninth Circuit Decision
In the opinion issued on June 3, 2020, the Ninth Circuit found for the plaintiffs and concluded that the 2018 registrations of XtendiMax, FeXapan, and Engenia violated FIFRA. As a result, the Ninth Circuit vacated those registrations. As a result, the Court vacated the registrations, which means that those pesticides are not currently registered, and thus unable to be sold or applied in the United States.
FIFRA is the federal statute that governs pesticide regulation within the United States. The statute is administered by the EPA, and outlines the process by which pesticides will be registered for use. XtendiMax, FeXapan, and Engenia initially received conditional registrations under FIFRA that were set to expire in 2018. On October 31, 2018, EPA approved conditional new-use registrations for all three pesticides for an additional two years until December 20, 2020. The registrations approved by EPA in 2018 contained amendments to the labels of all three pesticides. Because the pesticides were registered under amended labels, they had to be registered pursuant to FIFRA’s requirements for conditional amendment of an existing regulation. Under those requirements, pesticides will only be registered if EPA determines that (i) the applicant has submitted “satisfactory data,” and (ii) the amendment will not “significantly increase the risk of any unreasonable adverse effect on the environment.” 7 U.S.C. § 136a(c)(7)(B). The text of FIFRA defines “unreasonable adverse effect on the environment” to include “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide.” 7 U.S.C. § 136(bb).
The plaintiffs in this case claimed that EPA failed to meet both of the requirements for conditional amendment of an existing regulation. In its opinion, the Ninth Circuit determined that it did not need to consider whether the applicants had submitted satisfactory data because EPA had wrongly concluded that label amendments would not significantly increase adverse effects to the environment. The court reached this conclusion by finding that EPA had substantially understated the three risks that it identified and failed to acknowledge three others.
The three risks the court believes that EPA substantially understated include: (1) the amount of acreage planted with dicamba-resistant seeds in 2018; (2) a conclusion that complaints of dicamba damage could have been either under-reported or over-reported; and (3) EPA’s decision not to estimate the amount of damage caused by OTT application. According to the court, the evidence indicated that the acreage of dicamba-resistant seeds that was planted in 2018 was greater than EPA stated, and that complaints of dicamba damage had been under-reported. In doing so, EPA did not fairly consider whether the 2018 registrations would increase adverse effects to the environment, because it understand the potential effect of those risks.
Further, the three risks that the court believes EPA failed to acknowledge when it determined that the label amendments would not increase adverse effects to the environment include: (1) substantial non-compliance with label requirements; (2) economic costs; and (3) social costs. In discussing these unacknowledged risks, the court stated that the labels for XtendiMax, FeXapan, and Engenia were forty pages long with a myriad of instructions and restrictions that made the labels difficult to comply with. The court went on to state that the registrations presented economic costs due to what the court described as a “near monopoly” by Monsanto of dicamba-resistant technology. Finally, the court stated that registration of the three dicamba-based herbicides had significant social costs because “dicamba has torn apart the social fabric of many farming communities.”
As a result of this ruling, at this moment, XtendiMax, FeXapan, and Engenia are not registered for use in the United States because the Ninth Circuit has vacated their registrations. At the time of publication, EPA has not issued a formal or official statement on the Ninth Circuit’s decision, but has said that the agency is reviewing the opinion. It is possible that the agency may choose to react similarly to how it reacted when the Ninth Circuit vacated the registration for sulfoxaflor in 2015. Following that decision from the court, EPA issued a Final Cancellation Order. In that order, EPA stated that it would treat the court’s decision the same as if the registration for sulfoxaflor had been cancelled according to FIFRA. Under FIFRA, EPA has the authority to cancel the registration of a pesticide. When this happens, sale and distribution of the pesticide is prohibited. EPA then decides whether farmers who had purchased that pesticide before the cancellation will be able to use what they purchased. Because EPA determined that it had the authority to treat the court’s decision to vacate the registration of sulfoxaflor as if the registration had been cancelled, the agency had the authority to decide whether farmers who had already purchased sulfoxaflor were able to use their existing stock. In that instance, EPA determined that they could.
It is possible that EPA may also appeal the Ninth Circuit’s decision. If it appeals the decision, EPA may ask for the entire Ninth Circuit to hear its case in an en banc hearing or it may appeal the decision directly to the United States Supreme Court. EPA may also decide to seek either a stay or an injunction of the Ninth Circuit’s decision that would prevent the opinion from taking legal effect while the appeals process is on-going.
Bayer has issued a statement that it does not agree with the court’s conclusion and is currently assessing its options.
To read the court’s decision in Nat’l Family Farm Coal. v. U.S. Envtl. Prot. Agency, click here.
To read the text of FIFRA, click here.
To read the Final Cancellation Order for sulfoxaflor, click here.
For more information on dicamba-related litigation, click here.
For more National Agricultural Law Center resources on pesticides, click here.