EPA Moves for Dismissal of Endangered Species Act Claims in Herbicide Case

The Environmental Protection Agency (EPA) filed a partial motion to dismiss Tuesday in a case brought by agricultural trade associations concerning the denial of the registration of dicamba herbicide. The agency is seeking to dismiss claims that their regulation of the use of dicamba violated the Endangered Species Act.

The plaintiffs originally argued that dicamba is a “critical tool” used by farmers and that the plaintiffs and their members rely on dicamba and crops engineered to withstand the herbicide. New restrictions placed on the use of such products ” will diminish crop yields, cut productivity, and drive up operational costs,” the plaintiffs argued.

The EPA described the plaintiff’s ESA claims as objections to the use of both temporal application cutoffs and requirements for spatial buffers around and downwind of applications of the herbicide. The agency argued that the plaintiffs failed to raise their claims under the correct citizen suit procedures of the Endangered Species Act. Specifically, they said the”[p]laintiffs were required to provide EPA notice of their intent to sue, and then wait 60 days to allow the agency to consider the allegations and revisit or amend its decision if appropriate…[they] did not do so here.”

The agency is asking for the court to reject the plaintiff’s argument that the claims are not truly Endangered Species Act claims, but instead fall under the Administrative Procedures Act.

The plaintiff groups, the American Soybean Association and Plains Cotton Growers, are represented by Bradley Arant Boult Cummings. Agriculture giants Bayer, BASF, and Syngenta are present as intervenor defendants. Bayer is represented by Latham & Watkins LLP, BASF is represented by DLA Piper LLP and Beveridge & Diamond P.C, and Syngenta is represented by Arent Fox LLP.