Herbicide Manufacturers Move to Intervene in Dicamba Case

Chemical giant BASF said the Ninth Circuit’s decision to vacate three dicamba products caused “immediate chaos” in the agricultural sector and threatened many U.S. farmers. The company, represented by Beveridge & Diamond, filed an emergency motion to intervene in the case, claiming it is acting to protect itself and its customers.

“BASF has now made the request to intervene after careful consideration of the sudden and severe financial impact vacating the registration has had on farmers during this critical application time, when farmers now have less than a month to protect millions of acres under threat from resistant weeds,” the company said in a press release. The company said its scientists have more than 50 years of experience developing dicamba and they have invested in testing and science to develop their Engenia herbicide which they consider to be safe for use.

E. I. du Pont de Nemours and Company, represented by Crowell & Moring LLP, also filed a Motion to Intervene in the case on the same date. The company registered and manufactures the herbicide FeXapan and also claims an interest in the court case.

The decision in the Ninth Circuit court on June 3rd blocked three dicamba-based herbicides, including BASF’s Engenia, which are meant to be used over the top of plants. The Environmental Protection Agency (EPA) later filed a cancellation order for the products, which it had previously given temporary approval. The EPA said the products could be used through July 31 under certain circumstances. The petitioners later filed an emergency request for the court to enforce immediate action banning the products from use.

“Taking this action during the height of the application season gives no regard to the significant investments farmers have made in their businesses and leaves them without viable options for the growing season,” said Paul Rea, Senior Vice President, BASF Agricultural Solutions North America in the press release.

BASF argued in its motion that the petitioners initially filed the case to review Monsanto’s XtendiMax, but the panel decision also reached Engenia and FeXapan produced by companies who were not parties in the legal dispute.

“The panel chose to vacate these three registrations nationwide despite the undisputed harm doing so will cause farmers across this country. And ensuring it would be exceedingly difficult for the non-party manufacturers to protect their rights after the panel decision brought them into the case, the panel ordered the mandate to issue immediately. This decision left the manufacturers, and the growers who use their products, in a state of uncertainty in the midst of the growing season,” the order stated.

Both companies ask for their emergency orders to be considered quickly, citing the petitioner’s recent request for the court to not allow the use of current stocks through July as the EPA decided in its emergency order.