Last week the U.S. Court of Appeals for the 9th Circuit issued a ruling that immediately banned current U.S. registrations of certain low-volatility dicamba herbicide products. The ruling was a result of a petition filed by environmental organizations with the 9th Circuit challenging the U.S. Environmental Protection Agency’s 2018 registration decision.

The three-judge panel concluded the Environmental Protection Agency had “failed entirely” to acknowledge some risks dicamba poses and that the agency violated federal regulations when it extended its approval of registration for the herbicide for another two years in October 2018. The ruling means farmers who bought and planted seeds to be used with dicamba for this year’s growing season may not be able to protect their crops with dicamba, since pesticides can’t be sold or distributed in the U.S. without EPA registration. 

“EPA is currently reviewing the court decision and will move promptly to address the court’s directive,” a spokesperson for the agency said.

BASF’s Engenia^®, Corteva’s FeXapan^® and Bayer’s  XtendiMax^® dicamba herbicide-related products are affected by the decision. Aerial application use was not labeled as a potential application use for these dicamba products that were labeled for use on dicamba-tolerant crops. The ruling does not include banning Syngenta’s Tavium^® dicamba herbicide, which is also labeled for use on dicamba-tolerant crops. Tavium was approved by the EPA after the EPA’s 2018 reregistration of the other three dicamba products banned by the 9th Circuit and after the petitioners filed the petition that resulted in the current ban. 

The EPA first responded to the 9th Circuit’s decision by saying it is disappointed with the decision and “assessing all avenues to mitigate the impact of the Court’s decision on farmers.”  On June 8, the EPA issued a cancellation order that provided clarity for farmers on what the court’s ruling meant for this year’s crops. The EPA order said growers and commercial applicators may use existing stocks of the three dicamba products that were in their possession June 3. The user must follow the previously approved label and cease use of these products after July 31, 2020. In issuing the cancellation order, EPA Administrator Andrew Wheeler recognized that “at the height of the growing season, the Court’s decision has threatened the livelihood of our nation’s farmers and the global food supply.”

This ruling highlights the strategy of environmental activists filing these petitions in the U.S. Court of Appeals for the 9th Circuit due to it tending to rule more in their favor than other U.S. Court of Appeals Circuits. This is similar to the strategy used against Chlorpyrifos over the last decade. Instead of allowing the EPA to evaluate Chlorpyrifos as part of its reregistration process, activists petitioned the 9th Circuit Court multiple times in an attempt to force the EPA to ban the insecticide. This ultimately resulted in the EPA denying the petition to ban Chlorpyrifos in July 2019 and instead completing the reregistration process, but only after the 9th Circuit originally ruled to ban all uses of Chlorpyrifos. In February, Corteva, the largest manufacturer of Chlorpyrifos, announced it would stop manufacturing the product due to a decline in demand.