Tuesday’s decision is the latest in an almost decade-long legal back-and-forth over the availability and use of dicamba.
Fast facts:
- U.S. District Court of Arizona vacates dicamba, continuing history of back-and-forth regarding its use
- Dicamba was previously vacated in 2020 by U.S. Ninth Circuit Court of Appeals
Written By Drew Viguet, National Agricultural Law Center, U of A System Division of Agriculture
Fayetteville, AR (February 7, 2024) — A federal court in Arizona has overturned the 2020 dicamba registrations that allowed over-the-top applications of three dicamba products, XtendiMax, Engenia and Tavium, leaving a cloud of uncertainty for farmers and defendants.
Tuesday’s decision is the latest in an almost decade-long legal back-and-forth over the availability and use of dicamba.
In an order from the U.S. District Court of Arizona, the court concluded that the U.S. Environmental Protection Agency failed to comply with the Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA’s, public notice-and-comment requirements when approving a “new use” of dicamba. The court order is available online.
Dicamba is an herbicide that targets broad-leafed plants and is used to combat weeds that have grown resistant to glyphosate, including palmer amaranth, commonly known as pigweed. Prior to 2016, dicamba has been used as a pre-emergent, meaning that it was applied to the ground in late winter or early spring before crops were planted. Older forms of dicamba were prone to volatility causing the pesticide to move off target and damage nearby fields. By applying dicamba as a pre-emergent, risk of off-target damage was greatly reduced. However, in 2015, Monsanto Co., which is now part of Bayer, released a line of soybean and cotton seeds engineered to be resistant to dicamba. The following year, EPA approved over-the-top use of dicamba for the first time. Several companies brought dicamba products to market.
“The decision to approve over-the-top use of dicamba was very controversial,” Brigit Rollins, staff attorney for the National Agricultural Law Center, said. “Lawsuits challenging that decision were filed almost right away.”
According to Bayer’s website, its dicamba products are registered for use in all but 14 of the 48 contiguous states, including Arkansas.
The Feb. 6 court order from the U.S. District Court of Arizona is not the first time the dicamba registration has been vacated. In June 2020, the U.S. Ninth Circuit Court of Appeals vacated the then-current dicamba registration for violating FIFRA. Following that cancel order, EPA re-registered dicamba for over-the-top use through 2025. Once again, the same parties that had challenged the previous dicamba registration filed a lawsuit against EPA for re-approving over-the-top use.
Wait and see
For now, it’s a wait-and-see situation for farmers who use the products and the defendants.
In an online statement, defendant-intervenor Bayer, said, “We respectfully disagree with the ruling against the EPA's registration decision, and we are assessing our next steps. We also await direction from the EPA on important actions it may take in response to the ruling.”
“Now that the court has issued its decision, we’re waiting to see what both EPA and the defendants will do next,” Rollins said. “Last time around, EPA issued its formal cancellation order pretty quickly after the decision, but the agency did allow people who had already purchased dicamba for the 2020 growing season to use up their existing stocks. We’re waiting to see if EPA will do the same on this go around.”
Rollins added that it’s likely the defendants will appeal this ruling.
“If they do, we’ll be waiting to see whether the district court’s ruling is stayed while the appellate court considers the case,” she said.
While the timeline on EPA’s response to the court’s order is uncertain, the decision by the Arizona federal court indicates a forthcoming Notice of Intent to Cancel over-the-top use of dicamba. Currently, Arizona is the only state in the Ninth Circuit where dicamba is available for over-the-top use.
Mention of product names does not imply endorsement by the University of Arkansas System Division of Agriculture.
More on the history of dicamba can be found on the NALC website in a series authored by Rollins, “The Deal with Dicamba.”
Rollins is set to discuss the future of pesticides in the western U.S. at the Western Agricultural and Environmental Law Conference. The event will be held at the University of Nevada, Reno, on June 13-14 with a livestream option available. Conference information and registration is available online.
For information about the National Agricultural Law Center, visit nationalaglawcenter.org or follow @Nataglaw on x. The National Agricultural Law Center is also on Facebook and LinkedIn.
For updates on agricultural law and policy developments, subscribe free of charge to The Feed, the NALC’s newsletter highlighting recent legal developments facing agriculture, which issues twice a month.
About the National Agricultural Law Center
The National Agricultural Law Center serves as the nation’s leading source of agricultural and food law research and information. The NALC works with producers, state and federal policymakers, Congressional staffers, attorneys, land grant universities, and many others to provide objective, nonpartisan agricultural and food law research and information to the nation’s agricultural community.
The NALC is a unit of the University of Arkansas System Division of Agriculture and works in close partnership with the USDA Agricultural Research Service, National Agricultural Library.
Dicamba Court Order Puts Farmers in Immediate, Costly Bind
American Soybean Association Implores Administration to Help Farmers Fast Approaching Spring Planting Season
Washington, DC (February 8, 2024) - The American Soybean Association — the national advocacy organization for the industry — and 26 soy state affiliates have sent a letter to the Environmental Protection Agency asking the administration for help following a dicamba ruling in a federal district court in Arizona.
The court ruled EPA made a procedural error in issuing 2020 dicamba registrations for over-the-top (OTT) use on dicamba-tolerant soybeans and cotton. Because EPA did not offer a public notice and comment period before issuing the registrations, the court ruled the agency was in violation of the Federal Insecticide, Fungicide, and Rodenticide Act and vacated 2020 registrations for XtendiMax, Enginia, and Tavium.
The ruling appears to affect every state in which the products are registered and thus could impact more than 50 million acres of dicamba-tolerant soybeans and cotton — an area larger than the state of Nebraska.
Josh Gackle, ASA president and soybean farmer from North Dakota, said, “We are clearly disappointed with the court’s dicamba ruling, but more pressing, soybean and other farmers are exceptionally concerned about what this means as we approach 2024 planting season. If the administration does not issue an existing stocks order so we can use the millions of dollars of product already ordered for spring planting, we are in a world of hurt. Not only is there immediate financial loss from not being able to use the product we’ve ordered, but the decision puts tremendous weight on this season’s yield capabilities. If we cannot quickly access dicamba or acquire viable alternatives, we’ll likely have lower production this year from uncontrolled weeds—and that means even greater revenue loss.”
It is unclear whether the ruling will take effect immediately. Most farmers have already placed orders for herbicide and herbicide-tolerant seed. And, there are few alternative products available to cover the capacity of a nationwide switch.
FIFRA gives EPA the authority to issue existing stocks orders for products that are cancelled, which is now a major priority for the soybean industry. ASA also asks for the administration’s support of an appeal of the ruling and help in seeking to stay the ruling from taking effect pending appeal.
In 2023, ASA, its 26 state soy affiliates, and several cotton associations submitted an amicus brief to the District Court of Arizona in this case urging the judge to avoid vacatur. Neither ASA nor the other grower groups are parties to the Arizona case, however.
Texas crop producers need to be aware of latest dicamba ruling
AgriLife Extension experts prepare for more information
Written by Kay Ledbetter
College Station, TX (February 9, 2024) - Texas producers on the verge of planting their cotton and soybean crops are turning to Texas A&M AgriLife Extension Service officials in light of a Feb. 6 federal court in Arizona vacating the 2020 registrations of three dicamba herbicides — XtendiMax by Bayer, Engenia by BASF and Tavium by Syngenta, which were previously labeled for use on dicamba-tolerant cotton and soybeans.
The U.S. Environmental Protection Agency, EPA, must first respond before producers know how to plan for weed management in the rapidly approaching 2024 season.
“We are waiting for a response from EPA on how producers are to proceed regarding the use of Dicamba in the 2024 growing season,” says Scott Nolte, Ph.D., AgriLife Extension statewide weed specialist in the Texas A&M Department of Soil and Crop Sciences, Bryan-College Station.
In the meantime
“Regardless of whether these current restrictions stand or if EPA modifies this vacatur, growers are encouraged to plan on the use of preplant and preemergent soil-active herbicides to reduce the reliance on post-emergent herbicides,” Nolte says.
He says AgriLife Extension will continue to offer the Auxin training around the state because it also covers the Enlist herbicides, which are not a part of the court ruling.
“If growers plan to use an Enlist system, Auxin training is still required prior to application of Enlist One or Enlist Duo in Texas,” Nolte says.
AgriLife Extension will provide more educational information as it becomes available.