Fighting to Farm: Dicamba Case Shows Agriculture's Vulnerability to Regulations and Rulings

“The timing was incredibly poor.” This comment from Kevin Scott, farmer from the Valley Springs, S.D. area, nicely sums up all soybean and cotton farmers’ thoughts on the court ruling shutting down the use of dicamba herbicides – right at the height of the growing season.

The June 3 ruling against Xtend, FeXapan, and Engenia came at a supremely bad time, as farmers across the country had dicamba-resistant soybeans already planted and growing in their fields. An estimated 60 million acres of dicamba-resistant soybeans and cotton were planted this spring nationwide. The U.S. Court of Appeals for the Ninth Circuit ruled against the herbicides based not so much on the technology itself nor on the Endangered Species Act, but on the process they say the EPA used to approve those registrations.

“We paid a premium for that seed, and now we can’t use it,” Scott said of the dicamba herbicides farmers were relying on to control weeds and keep fields clean during the 2020 growing season. And weed pressure is very real in many areas this year, after 2019’s weather pattern led to less-than-ideal crop conditions and a record amount of PP acres.

The plaintiffs – the Center for Biological Diversity, the Center for Food Safety, the National Family Farm Coalition, and the Pesticide Action Network North America – wanted the June 3 ruling to be implemented immediately, meaning absolutely no more use of dicamba products from that day forward.

Fortunately, on June 8 the U.S. Environmental Protection Agency (EPA) came through with “existing stocks” guidance, allowing for the temporary use of any dicamba products already in the marketplace. This, of course, did not sit well with the plaintiffs in the case, who initiated another volley of back-and-forth motions to try to shut down these herbicides immediately.

“It is an excellent product and there is a correct use for it,” Scott stated. He did acknowledge, though, that farmers must be diligent to use dicamba correctly.

Scott is one of South Dakota’s representatives to the American Soybean Association board of directors and is grateful for ASA’s policy and regulatory work in Washington, D.C.

“ASA has a very strong policy group in D.C.,” he commented, which is more important than ever as regulatory pressure and court rulings entangle themselves in farmers’ daily work.

“We are fighting to be able to farm,” Scott believes.

Perspective from D.C.

Kyle Kunkler, Director of Government Affairs for the American Soybean Association, said June was an incredibly busy month as staff tried to keep ahead of the ever-changing situation. Like Scott, he too worries about the precedent this lawsuit might set.

“This ruling was abruptly and suddenly thrust onto the agriculture community,” Kunkler said. “This is very unprecedented.”

Normally, Kunkler noted, the court would have a customary process that allows time for implementation. In this case, he said, the mandate of an overnight halt “caught everyone off guard.”

“We are very thankful for the EPA’s existing stocks guidance,” he commented. “We are really thankful that EPA put that tool into place.”

The “existing stocks” guidance comes directly from the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the federal statute that governs the registration, distribution, sale, and use of pesticides in the U.S. On June 11, which was three days after the EPA declared permission to use existing stocks, the plaintiffs filed an emergency motion with the court asking for an immediate halt of all dicamba use.

Timeline

On June 16, ASA brought together five other agriculture groups to file an amicus briefs as friends of the court: the American Farm Bureau Federation, American Soybean Association, National Cotton Council of America, National Association of Wheat Growers, National Corn Growers Association, and National Sorghum Producers.

In the amicus brief, ASA and the other farm groups explained U.S. farmers’ massive investment in dicamba-tolerant crops, the lack of alternative products to mitigate risk at this point in the growing season, and farmers’ dependence upon the orderly regulation of crop-protection products.

The brief stated: “Granting Petitioners’ requested relief would short circuit the proper administrative and judicial-review framework that Congress prescribed for existing stocks under FIFRA. Farmers use countless FIFRA-regulated pesticide products, including herbicides, insecticides, and fungicides. They make planting decisions and significant, up-front financial investments, based on the rules and regulations in place at the time plans are made. Farmers depend on the rules not changing in the middle of the game—they need certainty. Fortunately, Congress provided that certainty by equipping EPA with ‘existing stocks’ authority that it has exercised here. EPA’s long-established policy and practice under FIFRA provides for an orderly management of the distribution, sale, and use of a formerly registered pesticide product, including in the context of vacatur.”

On June 19, the court rejected the petitioners’ emergency motion and upheld the EPA decision to allow the use of existing dicamba stocks. Although this was definitely a win for soybean growers, ASA’s Kunkler noted that the court did not provide any commentary in its June 19^th decision, which “leaves some room for interpretation.”

“What’s unfolding could be a precedent for any future products,” Kunkler noted. “We want to make sure we get this right.”

Working for Growers

This dicamba lawsuit gives farmers a glimpse into how the American Soybean Association works for them in Washington.

The court’s ruling first came down on the evening of June 3, and Kunkler reports that by 8:00am the next morning, ASA staff were on the phone with EPA to work toward this “existing stocks” option. ASA coordinated with other affected groups to work with EPA and find ways to make the situation more workable for growers.

Writing the amicus brief for the court, proactively preparing for challenges from the NGOs that filed the suit, and quickly communicating updates to members were among the many activities relating to this dicamba lawsuit. Kunkler said that ASA staff strive to quickly, clearly communicate the details out to farmers – especially what the developments mean on a practical level out in the field.

“We have many opportunities and options to advocate on behalf of growers, both in court and to the regulatory agencies,” Kunkler noted.

Other crop-protection products are being considered by the courts as well. For example, a suit is being heard against a 2,4-D product by this same Ninth Circuit Court that ruled against dicamba. The list of plaintiffs is the same.

The question is what exactly is within EPA’s powers. Does EPA have the right to authorize the use of existing stocks if a court vacates a crop-protection product’s registration?

“We believe from both the letter of the law and from previous precedent, there is very good justification for the EPA to do so,” Kunkler stated, emphasizing the importance of having a mechanism in place to wind down use of a product responsibly when faced with its cancellation.

“It will continue to play out in the months ahead,” Kunkler commented, noting that ASA will be in the trenches on its members’ behalf.

About the Petitioners:

Four different NGOs (non-governmental organizations) came together to file the lawsuit against dicamba. Here is a list of the organizations and the “about us” language from each of their websites:

NATIONAL FAMILY FARM COALITION (www.nffc.net)

“National Family Farm Coalition (NFFC) was founded in 1986, at the height of the 1980s farm crisis, to be a voice for farmers in Washington, DC – and we still are. Today, we are the only national coalition representing grassroots farm, ranch, and fishing organizations in the nation’s capital. Through our 30 member groups, we represent in 42 states. Our members are fighting for farmer rights, fair prices, clean air and water, strong local economies, the right to sell and buy locally-grown and -processed food, the right to be free from corporate domination, the right to live in vibrant and healthy rural communities, and much more.”

CENTER FOR FOOD SAFETY (www.centerforfoodsafety.org)

“For twenty years, CFS has been at the forefront of organizing a powerful food movement that is fighting the industrial model and promoting organic, ecological, and sustainable alternatives.”

CENTER FOR BIOLOGICAL DIVERSITY (www.biologicaldiversity.org)

“At the Center for Biological Diversity, we believe that the welfare of human beings is deeply linked to nature — to the existence in our world of a vast diversity of wild animals and plants. Because diversity has intrinsic value, and because its loss impoverishes society, we work to secure a future for all species, great and small, hovering on the brink of extinction. We do so through science, law and creative media, with a focus on protecting the lands, waters and climate that species need to survive. We want those who come after us to inherit a world where the wild is still alive.”

PESTICIDE ACTION NETWORK NORTH AMERICA (www.panna.org)

“At Pesticide Action Network (PAN) North America, we work to create a just, thriving food system. For too long, pesticide and biotech corporations have dictated how we grow food, placing the health and economic burdens of pesticide use on farmers, farmworkers and rural communities. PAN works with those on the frontlines to tackle the pesticide problem — and reclaim the future of food and farming. PAN North America is one of five regional centers worldwide. We link local and international consumer, labor, health, environment and agriculture groups into an international citizens’ action network. Together, we challenge the global proliferation of pesticides, defend basic rights to health and environmental quality, and work to ensure the transition to a just and viable food system.”

By Kristin Brekke Vandersnick