In a recent decision, the United States Court of Appeals for the Ninth Circuit vacated three pesticide registrations for dicamba-based herbicides, “XtendiMax With VaporGrip Technology” (“XtendiMax”), “DuPont FeXapan Herbicide” (“FeXapan”), “Engenia Herbicide” (“Engenia”). The registrations were approved by the Environmental Protection Agency (“EPA”) in 2018 according to the standards laid out in the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), the federal statute that governs pesticide regulation in the United States. Although dicamba-based pesticides have been in use for decades, the three pesticides affected by the court’s decision are the first dicamba-based herbicides approved to be sprayed on growing crops. Prior to the initial registration of XtendiMax in 2016, dicamba was primarily used as a pre-emergent during the later winter and early spring before crops were planted because dicamba has a tendency to vaporize into the air and drift off-target, destroying or damaging an vegetation it touches. XtendiMax, FeXapan, and Engenia are formulations of dicamba designed to be less likely to drift off-target, and are used in combination with seeds that are engineered to be dicamba-tolerant.

The court’s decision in Nat’l Family Farm Coal. v. U.S. Envtl. Prot. Agency, No. 19-70-115 (9th Cir. 2020) was issued on June 3, 2020, a date that falls in the middle of the growing season in many parts of the country. Many farmers who had been planning to spray one of the three pesticides affected by the order were left in limbo following the court’s decision. According to the text of FIFRA, unregistered pesticides may not be sold or distributed, but the statute is silent on use of unregistered pesticides. Five days after the Ninth Circuit issued its order, EPA released the Final Cancellation Order for Three Dicamba Products (“Cancellation Order” or “the Order”). The Order addressed what could be done with existing stocks of the pesticides after the Ninth Circuit’s order. According to EPA, distribution and sale of the pesticides was forbidden after June 3, except for shipping it back to the manufacturer for the purpose of disposal. However, the Order permits certified applicators and producers to use existing stocks of the pesticides, provided they are used according to their labels, until July 31, 2020.

Shortly after EPA released the Order, the plaintiffs filed a motion with the court seeking to have the Order overturned. They argued that the court should order all usage of existing stocks to end immediately. EPA has filed a reply to the plaintiffs’ motion, arguing that the Order is consistent with the requirements of FIFRA.

Plaintiffs’ Motion

The plaintiffs filed their motion urging the Ninth Circuit to overturn EPA’s Cancellation Order on June 11, 2020, three days after the Order was issued. Specifically, the plaintiffs ask the court to lift the mandate that the Ninth Circuit issued on June 3 in order to clarify and enforce its decision. The mandate the plaintiffs want lifted was issued separately from the Ninth Circuit’s opinion and puts into effect the court’s order that the pesticide registrations be vacated. The plaintiffs argue that the court should lift the mandate and enforce the removal of the pesticide registrations in a way that prevents EPA from allowing use of existing stock of XtendiMax, FeXapan, and Engenia.

The plaintiffs make several arguments for why the court should grant their motion. First, the plaintiffs argue that EPA defied the court’s authority by issuing the Cancellation Order. According to the plaintiffs, the Ninth Circuit’s decision vacating the pesticide registrations only applied to the over-the-top use of the pesticides. Essentially, the plaintiffs argue that the court’s order was meant to immediately prevent the three pesticides from being sprayed directly onto crops because the court’s order only vacated the registration of the pesticides for that particular use. Therefore, EPA’s Cancellation Order defies the court’s decision by allowing applicators to continue application.

The plaintiffs also argue that EPA does not have the authority to issue the Cancellation Order. Under FIFRA, EPA has the authority to cancel pesticide regulations. When EPA cancels a pesticide registration, distribution and sale of the pesticide must stop, but EPA has the authority to determine the extent to which existing stocks of the pesticide can be used. In the past, EPA has treated pesticides with registrations that were vacated by a court the same as if the pesticide registration had been cancelled under FIFRA. The plaintiffs argue that EPA does not have the authority to issue a cancellation order because in situations where a court vacates a pesticide registration, it is determining that the pesticide was never lawfully registered in the first place. Because it was never lawfully registered, they argue, it cannot have its registration cancelled.

Finally, the plaintiffs argue that the Ninth Circuit should review and reach a decision on the Endangered Species Act (“ESA”) arguments that the plaintiffs raised in their case. In the opinion issued June 3, the Ninth Circuit did not reach the plaintiffs’ ESA claims because it concluded that the pesticide registrations were unlawful based on the plaintiffs’ FIFRA arguments. The plaintiffs argue that the Ninth Circuit should reach the ESA claims due to the alleged severity of risk the three pesticides pose to endangered species.

EPA Response

In its response to the plaintiffs’ motion, EPA argued that the Ninth Circuit should allow the Cancellation Order to remain in place.

First, EPA addressed the plaintiffs’ claim that the court’s decision only vacated the registration of over-the-top use for XtendiMax, FeXapan and Engenia. EPA notes that XtendiMax was originally registered in 2016 for over-the-top and other uses. That registration was renewed in 2018, which is when FeXapan and Engenia were initially registered. Those 2018 registrations, which the court vacated, include both over-the-top and other uses. In its response, EPA argues that the different uses cannot be severed from the registration. Therefore, vacating the registration overturns the entire registration, not just one particular use.

EPA addressed the plaintiffs’ claim that the Cancellation Order defied the court’s decision to vacate the registrations. EPA argues that the Order was consistent with the Ninth Circuit’s vacatur of the registrations because the Order did not try to restore the registrations, it only addressed what to do with existing stocks. Under FIFRA, unregistered pesticides may not be sold or distributed. “Distribute” is defined broadly under FIFRA and includes shipment. Without the Order from EPA, it would be illegal for anyone in possession of existing stock of the three pesticides to ship stock back to the manufacturer for proper disposal. While FIFRA prevents the sale and distribution of unregistered pesticides, it has no corresponding provision preventing the use of existing pesticides. EPA argues that if it did not issue the Order permitting the use of existing stock only according to the labels, then the agency would have no way to ensure that applicators would not use the pesticides in a manner that would cause harm. According to EPA, this is why the agency treats court decisions to vacate registrations the same as if the registrations had been cancelled. Although FIFRA does not have a provision outlawing the use of unregistered pesticides, it does grant EPA the authority to determine what to do with existing stock of pesticides with cancelled registrations.

Additionally, EPA argued that the court did not need to consider the ESA claims raised by the plaintiffs because the court granted the plaintiffs the relief they requested after considering their FIFRA claims.

Additional Filings and Going Forward

An amicus curiae brief filed by a coalition of agricultural interest groups is urging the court to rule in favor of EPA and permit the Cancellation Order to remain in place. An amicus curiae brief allows individuals or organizations that are not parties to a case to assist the court by offering valuable insight or knowledge on the issues being considered. In their brief, the agricultural interest groups allege that farmers who were planning on applying any of the three-dicamba herbicides this season before the Ninth Circuit issued its opinion would stand to suffer financial injury if the Cancellation Order was overturned. Whether the brief will be considered is up to the court.

The decision on whether to permit the Cancellation Order to remain in effect is now before the Ninth Circuit. If the court decides to grant the plaintiffs’ motion, it is possible that the order vacating the registrations of XtendiMax, FeXapan, and Engenia could be modified to prevent EPA from allowing use of existing stocks of those pesticides according to their labels. It is also possible that the court could decide to consider the plaintiffs’ ESA arguments. If the court declines the plaintiffs’ motion, then EPA’s Cancellation Order would remain in effect and continue to be the authority on how existing stocks of the three pesticides will be treated.

Whatever the court decides, it is important to note the timeliness of the issue. The registrations for XtendiMax, FeXapan, and Engenia expire December 20, 2020, and the growing season during which producers would typically apply dicamba-based herbicides onto crops will come to an end before that. Depending on how quickly the court moves to resolve this issue, it may end up not having much on-the-ground effect. Currently, EPA’s Cancellation Order is permitting use of the pesticides until July 31. If the court does not make a ruling on the plaintiffs’ motion until after that date, it is unlikely to effect producers concerned with pesticide application for the 2020 growing season.

To read the plaintiffs’ motion to overturn the Cancellation Order, click here.

To read EPA’s response to the plaintiffs’ motion, click here.

To read the Cancellation Order, click here.

To read the amicus curiae brief, click here.

To read the decision in Nat’l Family Farm Coal. v. U.S. Envtl. Prot. Agency, click here.

For further National Agricultural Law Center resources on pesticides, click here.

For previous Ag & Food Law Update posts on dicamba, click here.