EPA Re-Registers Dicamba Products With Additional Restrictions After Ninth Circuit Vacates Order

On Tuesday the Environmental Protection Agency (EPA) re-registered two herbicides, which use dicamba, and extended the registration of one product. The EPA said, “this registration action meets the regulatory standard of causing no unreasonable adverse effects to either human health or the environment,” however environmental and food advocacy organizations had filed a lawsuit which cancelled the previous registrations of over-the-top dicamba products and said they would take similar action this time. 

“With today’s decision, farmers now have the certainty they need to make plans for their 2021 growing season,” said EPA Administrator Andrew Wheeler. “After reviewing substantial amounts of new information, conducting scientific assessments based on the best available science, and carefully considering input from stakeholders we have reached a resolution that is good for our farmers and our environment.”

The EPA’s announcement of the registration said that it will require additional restrictions and clearer use directions for “over-the-top” use of the products. A pH-buffering agent will be required and a downwind buffer where listed plant species are present. Over-the-top uses will be prohibited after certain dates in the season. It also only approved the products’ use on dicamba-tolerant cotton and soybean plants. The regulations reportedly contain additional control measures to help protect the environment as well as crops and gardens where the plants are not resistant to dicamba. 

The Center for Food Safety said in a release, “The decision comes a mere four months after the U.S. Court of Appeals for the Ninth Circuit harshly revoked the EPA’s 2018 approvals for two of the three dicamba products, citing the agency’s failure to account for dicamba’s well-documented harms and its extensive damage to U.S. agriculture.” 

The two products involved in the lawsuit and reapproved include Xtendimax, sold by Bayer, and Engenia, sold by BASF.  The third product is Tavium which is sold by Syngenta. The Center for Food Safety’s release said that the registration did not sufficiently address dicamba drift, which it says is a large problem and has injured many plants, including soybeans, fruit orchards, vegetable farms, backyard gardens, and natural areas. 

George Kimbrell, legal director at the Center for Food Safety said, “Rather than evaluating the significant costs of dicamba drift as the 9th Circuit told them the law required, EPA rushed re-approval … sentencing farmers and the environment to another five years of unacceptable damage. We will most certainly challenge these unlawful approvals.” The release said the Center for Biological Diversity, National Family Farm Coalition, and Pesticide Action Network North America also plan to challenge the decision. 

The previous lawsuit filed by many of the same parties caused a mid-season cancellation of the herbicide’s use. This caused the EPA to take quick action to allow use of the products through the end of July, so farmers who purchased seeds resistant to dicamba could continue to plant as they had planned; the plaintiffs, however, considered this action a breach of the Judge’s order to vacate the products’ registration. Most recently in the Ninth Circuit case, the court denied a request by the companies producing the products for an En Banc hearing. 

Scott Kay, Vice President of U.S. Crop, BASF Agricultural Solutions said according to a CropLife article, “the need for Engenia herbicide is greater than ever before due to increased weed resistance. When the weeds win, farmers see the impact to their livelihoods, harvests and yields … Controlling resistant weeds is not only a physical challenge for farmers, it also can have a significant financial impact. It is estimated that certain resistant weed populations can reduce yields by 50% or more. This means that farmers planting dicamba-tolerant cotton and soybeans could potentially stand to lose more than $10 billion if they lost access to dicamba-based herbicides, like Engenia herbicide.”

The registrations will reportedly expire in December 2025 unless the EPA takes other action before that date.