The details are still being sorted through nearly 48 hours after the 9th circuit court of appeals issued its ruling on three EPA dicamba labels.
Since the decision was announced on June 3, farmers and retailers have been left in the lurch mid-spraying season.
The court decision vacated the labels for Xtendimax, Engenia and FeXapan. Shortly after the ruling was released, the mandate enforcing the order was published. On June 4, the product manufacturers paused their sales and distribution, and many retailers paused their applications and sales.
However, on June 5, some retailers resumed sales and applications of dicamba in states where the state departments of agriculture issued statements saying they would not enforce the 9th circuit court ruling, of which they are not in the jurisdiction of. Such states include Iowa, Kansas, North Dakota, Indiana, and others.
“Several state government agencies have issued public statements indicating the dicamba products referenced in the Ninth Circuit court decision are still available for sale and use as they are currently registered products in that state and the state agency awaits guidance from the EPA," says Richard Gupton, Ag Retailers Association (ARA) senior vice president of public policy and counsel. "ARA urges caution to any ag retailer as they may still be open to civil liability and their insurance coverage placed in jeopardy as a result of the court vacature decision. The industry at the moment is in unchartered territory."
One retailer that paused sales and then reopened sales the next day was MKC, a cooperative that serves Kansas, Missouri, Oklahoma and Arkansas. For now, their applicators and sales are still paused in Arkansas, but are open in other states.
“We rely on our associations, such as ARA, and relationships with our state regulatory agencies during times like this,” says Dave Spears, senior vice president and chief marketing officer at MKC. “When the Kansas department of agriculture signaled that we could continue to sell the products, we asked for something in writing, and now we’re in the process of spraying and selling those products.”
What could give clarity to the situation? Well, right now, all eyes are on the EPA for guidance. The EPA released a statement late on June 5 including saying: “EPA is assessing all avenues to mitigate the impact of the Court’s decision on farmers.”
ARA sent a letter to the EPA on June 5 urging the agency to appeal the court’s decision. In its letter ARA said, “EPA has long-established procedures for cancelation orders to avoid the chaos we will see and are seeing from this decision.”
MKC’s Spears said this has caused a disruption for their farmers and their business. In 2019, approximately 125,000 acres of dicamba-tolerant genetics were applied across the cooperative’s footprint by MKC applicators—so that number doesn’t include farmer applied acres.
“For soybean farmers who just planted or are finishing up planting of the dicamba-tolerant genetics, they were really caught off guard.” he says. “As wheat harvest approaches and planning for double crop soybean planting is underway, we’ve had growers switch seed platforms because of the uncertainty. And at this time, alternative seed is hard to come by.”
As of today, MKC has 7,000 acres of orders released to apply dicamba products, but their geographic area is just beginning pre and post application so there are many more acres to come.