On the heels of the decision to remove registrations for Engenia, FeXapan and XtendiMax herbicides, states—and ultimately, farmers are waiting for EPA to provide guidance. The decision was issued by the United States Court of Appeals for the Ninth Circuit late Wednesday night.
“USDA stands ready to assist its federal partners in meeting that goal,” says USDA Secretary Sonny Perdue. “I encourage the EPA to use any available flexibilities to allow the continued use of already purchased dicamba products, which are a critical tool for American farmers to combat weeds resistant to many other herbicides, in fields that are already planted. Unfortunately, the Ninth Circuit has chosen to eliminate one of those tools.”
According to the decision, it is illegal to sell or apply dicamba as of June 3, 2020.
Farmers, retailers and other stakeholders are waiting to hear how this decision will be enforced, if it will be challenged and what they should expect the next two weeks. According to the federal label, dicamba can be sprayed as late as June 20, a window that is slamming shut quickly if no stay is granted.
“IDA (Illinois Department of Ag) legal counsel has looked at the U.S. Ninth Circuit Court ruling on dicamba and believes it clearly calls for the stop of use, sale and distribution of all uses of the three products, Xtendimax, Engenia and FeXapan, effective immediately,” says Jean Payne, president of the Illinois Fertilzier and Chemical Association. “The Tavium registration is not affected by this ruling. We are expecting a statement from IDA very soon, but this is the situation in Illinois, and we ask for our members to abide by this determination and help communicate this serious message.”
Confusion on state’s rights
Still, other states say this ruling doesn’t affect state registrations, and therefore, farmers and retailers can use the product.
“These three products currently have state registrations with OISC [Office of Indiana State Chemist]. The court’s opinion did not address state registrations for these products. Indiana pesticide law does not currently require federal registration as a condition of state registration. OISC has not initiated any suspension or cancellation orders for these products at this point. Therefore, the state registrations are still valid until any necessary suspension or cancellation process can be taken,” said OISC in a bulletin to farmers and retailers on June 5, 2020 at 11:10 a.m.
The Texas Department of Agriculture shared similar sentiment. “For the farmers in Texas, I want to be clear: I’ve got your back. Dicamba is still available for use in Texas as currently labeled and will continue to be so until someone tells us to stop. In this difficult time, the last thing Texas farmers need is more uncertainty,” said Texas Ag Commissioner Sid Miller on June 4, 2020.
Use caution even in states that aren't enforcing the decision.
“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."
ARA is among several groups that has reached out to EPA and federal officials directly, asking for more information and support for the industry regarding the dicamba decision.
Double check, talk to experts
The three manufacturers of the affected products have paused sales and movement of Engenia, FeXapan and XtendiMax until EPA provides more information.
There is still considerable confusion regarding if dicamba application can be allowed at the state level, and what states are allowing it. Check your local department of ag page regularly and call them if you have questions.
On June 5, EPA Administrator Andrew Wheeler released the first statement on the Ninth Circuit Vacatur of dicamba registrations:
“We are disappointed with the decision. The 2020 growing season is well underway and this creates undue burden for our first conservationists – farmers. EPA has been overwhelmed with letters and calls from farmers nationwide since the Court issued its opinion, and these testimonies cite the devastation of this decision on their crops and the threat to America’s food supply. The Court itself noted in this order that it will place a great hardship on America’s farmers. This ruling implicates millions of acres of crops, millions of dollars already spent by farmers, and the food and fiber Americans across the country rely on to feed their families.”
Here are links to certain state departments of ag:
*ARA statement added 6/5/2020 2:15 p.m.
* EPA statement added 6/6/2020 7:35 a.m.