Agricultural Law in the Spotlight - June 4, 2020

U.S. Appeals Court Invalidates FIFRA Registrations of Dicamba Products XtendiMax, Engenia and FeXapan.  

Written By:

Brook Duer, Staff Attorney

On June 3, 2020, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a decision overturning and vacating the U.S. Environmental Protection Agency’s October 31, 2018 approvals of conditional two-year amended product registrations of three dicamba herbicide products (Monsanto/Bayer’s XtendiMax, BASF’s Engenia and Corteva’s FeXapan) for over-the-top use on soybeans and cotton, effective immediately. National Family Farm Coalition, et al. v. EPA, No. 19-70115.  The Court held that the approvals violated the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. 

Since the prior registrations for those products expired by December 2018, none of the three products have a valid registration at this time and are therefore prohibited from being used or sold in the U.S. for those purposes. 

Syngenta’s dicamba herbicide product approved for over-the-top use on soybeans and cotton, Tavium, was not a subject of the petition for review because it was first registered and marketed for this use in April 2019, after the petition for review was filed.

The disruption to farming activities for the 2020 growing season, for which planning, purchasing of seed, planting and scheduled herbicide use may have already been completed, was acknowledged by the Court in stating,

    “We are aware of the practical effects of our decision. Among other things, we are aware of the adverse impact on growers who have already purchased [dicamba-tolerant] soybean and cotton seeds and dicamba products for this year’s growing season, relying on the availability of the herbicides for post-emergent use . . . We acknowledge the difficulties these growers may have in finding effective and legal herbicides to protect their DT crops if we grant vacatur. They have been placed in this situation through no fault of their own. However, the absence of substantial evidence to support the EPA’s decision compels us to vacate the registrations.”  

The current FIFRA registration for Tavium for over-the-top use on soybeans and cotton is dated April 5, 2019, and remains valid until December 20, 2020.  The product can still be used and sold in the U.S. for those purposes at this time.  

 The Ninth Circuit panel succinctly summarized the reasons for its decision as follows:

 

   “We hold that the EPA’s October 31, 2018, decision, and the conditional new-use registrations of XtendiMax, Engenia, and FeXapan for use on DT soybean and cotton that are premised on that decision, violate FIFRA. As we will explain in more detail below, FIFRA provides two requirements for conditional amendment of an existing registration. The EPA must determine 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). We need not decide whether substantial evidence supports a finding that the applicants submitted satisfactory data—although, as we discuss below, the data have several flaws—because we hold that the EPA substantially understated risks that it acknowledged and failed entirely to acknowledge other risks.

The EPA substantially understated three risks that it acknowledged. The EPA substantially understated the amount of DT seed acreage that had been planted in 2018, and, correspondingly, the amount of dicamba herbicide that had been sprayed on post-emergent crops. Further, the EPA purported to be agnostic as to whether formal complaints of dicamba damage under-reported or overreported the actual damage, when record evidence clearly showed that dicamba damage was substantially under-reported. Finally, the EPA refused to estimate the amount of dicamba damage, characterizing such damage as “potential” and “alleged,” when record evidence showed that dicamba had caused substantial and undisputed damage.

The EPA also entirely failed to acknowledge three other risks. The EPA entirely failed to acknowledge record evidence showing the high likelihood that restrictions on OTT dicamba application imposed by the 2018 label would not be

followed. The EPA based its registration decision on the premise that the label’s

mitigation measures would limit off-field movement of OTT dicamba. These

measures became increasingly restrictive with each iteration of OTT dicamba

labels. Record evidence shows that the restrictions on the 2016 and 2017 labels

had already been difficult if not impossible to follow for even conscientious users;

the restrictions on the 2018 label are even more onerous. Further, the EPA entirely failed to acknowledge the substantial risk that the registrations would have anticompetitive economic effects in the soybean and cotton industries. Finally, the EPA entirely failed to acknowledge the risk that OTT dicamba use would tear the social fabric of farming communities.

   We therefore vacate the EPA’s October 31, 2018, registration decision and

the three registrations premised on that decision. Because our vacatur is based on

our holding under FIFRA, we do not reach the question whether the registration

decision also violates the Endangered Species Act.” 

Links to the decision and the current Tavium registration, as well as to the April 21, 2020, oral argument by the parties’ legal teams before the U.S. Court of Appeals for the Ninth Circuit, are provided at the links embedded herein, or at the following:

Decision

https://law.justia.com/cases/federal/appellate-courts/ca9/19-70115/19-70115-2020-06-03.html

Tavium FIFRA Registration

https://www3.epa.gov/pesticides/chem_search/ppls/000100-01623-20190405.pdf

Oral Argument:

https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000017284

This material is based upon work supported by the National Agricultural Library, U.S. Department of Agriculture.

Agricultural Law Weekly Review—October 26, 2017

Written by M. Sean High—Staff Attorney

                 

The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

Labor: Judiciary Committee Passes AG Act

On October 25, 2017, Ag Web reported that the U.S. House Judiciary Committee passed Chairman Bob Goodlatte’s (R-VA) Agricultural Guestworker Act.  Known as the Ag Act, the proposed legislation would replace the current H-2A Guestworker program with a new H-2C Guestworker program.  According to the report, the version of the Ag Act passed by the committee differed from the originally introduced legislation in the following ways: (1) prior to the official enactment of H-2C, undocumented workers are not protected from enforcement; (2) the number of H-2C workers is reduced from 500,000 to 450,000; (3) H-2C workers need to have health insurance; (4) the Department of Homeland Security will still maintain H-2A responsibilities; and (5) green cards will not be set-aside for experienced workers.

FSMA: FDA Releases FSMA Preventive Control Guidance Documents

On October 19, 2017, the U.S. Food and Drug Administration (FDA) announced the availability of Food Safety Modernization Act (FSMA) guidance documents for the Preventive Controls for Animal Food rule and the Preventive Controls for Human Food rule.  According to FDA, the first document will help animal food establishments determine when they are subject to the Current Good Manufacturing Practice requirements in the Preventive Controls for Animal Food rule.  FDA stated that the second document addresses the “solely engaged” exemptions contained in the Preventive Controls for Human Food and Preventive Controls for Animal Food rules.

Herbicides: Monsanto Files Complaint Regarding Arkansas Dicamba Ban

On October 20, 2017, Brownfield Ag News reported that Monsanto has filed a complaint in an Arkansas court regarding the Arkansas Plant Board’s decision to reject “Monsanto’s petition to stop that state’s ban on the company’s XtendiMax dicamba herbicide for 2018.”  According to the report, Monsanto alleges that the Arkansas Plant Board erred by failing to take into consideration “extensive volatility data provided to it – including data that the EPA used in its registration decision.”

Herbicides: EU parliament votes to ban glyphosate

On October 24, 2017, France 24 reported that the European Parliament has voted to ban the use of glyphosate in the European Union by 2022.  According to the report, the action by the European Parliament is non-binding, but may serve to influence the European Commission which recently recommended extending the licensing of glyphosate for an additional ten years. The report stated that the European Commission’s recommendation to extend the use of glyphosate currently awaits approval by the twenty eight European Union member states.

Farmland Preservation: Pennsylvania Announces the Preservation of 44 New Farms

On October 13, 2017, the Pennsylvania Department of Agriculture (PDA) announced that the Pennsylvania Agricultural Land Preservation Board has placed 3,620 acres on 44 farms into the Pennsylvania farmland preservation program. PDA stated that the newly preserved farmland is located in Adams, Berks, Bucks, Butler, Chester, Cumberland, Dauphin, Erie, Franklin, Greene, Lancaster, Lawrence, Lehigh, Lycoming, Mercer, Monroe, Montgomery, Northampton, Washington and Westmoreland counties.  According to PDA, under the Pennsylvania farmland preservation program, which began in 1988, “federal, state, county and local governments have invested nearly $1.4 billion to preserve 542,800 acres on 5,213 farms in 59 counties for future agricultural production.”

Pennsylvania Legislation

House Rules Committee

• HB 790 Legislation to repeal the Noxious Weed Control Law (Act 74 of 1982) and replace it with the Controlled Plant and Noxious Weed Act (Referred to committee October 18, 2017)

Agriculture and Rural Affairs (S), Appropriations (S) and Education (S)

• Joint public hearing on the impact of the failure to fund the state-related institutions of higher education, the agricultural research and extension programs and the veterinary medicine school (October 25, 2017)

Pennsylvania Actions and Notices

Department of Agriculture

• Vegetable Marketing and Research Program
• Pennsylvania Malt and Brewed Beverage Industry Promotion Board; grant solicitation announcement and application procedures

Game Commission

• Chronic wasting disease—designation of disease management areas and endemic states and Canadian provinces order # 3

State Conservation Commission

• Action on odor management plans for concentrated animal operations and concentrated animal feeding operations and volunteers complying with the Commonwealth's Facility Odor Management Program

AgLaw HotLinks:

• Vidalia onion farmer ordered to pay $1.4M in overtime suit – Ag Web
• Deere wins lawsuit to protect green and yellow colors – Farm and Dairy
• GIPSA Withdrawal Draws Ire From Senators – Drovers
• Ag attorney encourages farmers to become familiar with H2-A program – Brownfield
• Investments in Beginning Farmer Training are paying off – National Sustainable Agriculture Coalition
• RMI Reveals Greatest Banking Threat is Farm Foreclosures – Ag Web
• Number of illnesses from backyard flocks breaks record – Food Safety News
• EPA Administrator Reinforces Support of RFS to Senators – Ag Web
• The Emergence of Urban Agriculture - Ag Web
• How will climate change impact animal ag in Northeast? – Farm and Dairy
• Oklahoma beef checkoff referendum process challenged – Feed Stuffs
• Expelling Immigrant Workers May Also Send Away the Work They Do – The New York Times
• Supersized Family Farms Are Gobbling Up American Agriculture – The Wall Street Journal

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