The Ninth Circuit Court of Appeals has vacated the registrations of three dicamba herbicides — Bayer's Xtendimax, BASF's Engenia and Corteva's FeXapan — after finding that EPA substantially understated or failed to consider the environmental and economic costs.

The ruling left regulators in northern soybean growing states, where the major soybean spraying season hasn't yet peaked, scrambling to know how to handle enforcement.

“This ruling could not have come at a worse time for North Dakota farmers and dealers,” Agriculture Commissioner Doug Goehring said, on Thursday, June 4. The impact especially affects northern growers who are among the last in the United States to grow and manage the soybean crops.

Goehring said he expects an immediate appeal by the manufacturers — Bayer, BASF and Corteva Agrisciences — or by the Environmental Protection Agency, “with a request for an emergency stay” which would allow the continued use of the products. Goehring said that could “take weeks and would only allow a narrow window for application, if at all.”

Andrew Thostenson, North Dakota State University Extension pesticide application specialist, said the Ninth Circuit Court of Appeals, based in San Francisco, ruled that dicamba formulations would lose their registration immediately. The judges gave no leeway or time period to allow the registrants or the EPA to file an appeal.

Farmers who have the chemical in their sprayers, ready to be applied, are wondering what they can do with it, Thostenson said.

“I don’t know what to tell them,” he said.

The court found the EPA had improperly approved the registration and had “substantially understated the risks” of the products. The system was designed by Monsanto, which was bought by Bayer in 2018.

Farm group coalition

The lawsuit initially was brought by the National Family Farm Coalition, the Center for Food Safety, the Center for Biological Diversity, and the Pesticide Action Network North America. The groups asked the EPA to pull from the market its “over-the-top” formulations that was used by farmers in much of the heaviest soybean growing areas, including North Dakota, South Dakota, Minnesota, Iowa and Nebraska.

“At that time the registration expired, the EPA issued new labels and the case became moot,” Thostenson said. But the plaintiffs refiled the suit and oral arguments occurred in March 2020.

“Three judges all vacated the registrations for Engenia, FeXapan, and Xtendimax,” he said. “They didn’t say anything about Tavium, which is a Syngenta product. Right now we don’t know the legal ramifications for that.”

George Kimbrell of the Center for Food Safety, is lead counsel in the case.

“It is good to be reminded that corporations like Monsanto and the Trump administration cannot escape the rule of law, particularly at a time of crisis like this. Their day of reckoning has arrived," he said.

Goehring called that statement “vindictive.”

Violating FIFRA

The court said the products violated the Federal Insecticide, Fungicide and Rodenticide Act, or FIFRA. Thostenson called the immediate ban an “extraordinarily rare situation.”

In 2019, NDSU officials estimated that about 50% to 60% of all of the soybeans grown in the state included the dicamba-tolerant trait, meaning that the dicamba formulations can be sprayed “over-the-top” so that the beans would survive and the weeds die.

Thostenson said the percentage market share for dicamba in the state is expected to come down to about 40% to 45% of soybean acres because of the introduction of other products, including the Enlist beans that are provided with a trait to make them resistant to a 2-4,D-formulation. BASF has their Liberty lines and a new line called the GT27.

“There are many more options (compared to dicamba beans) on the table than there had been in previous years,” Thostenson said.

Greg LaPlante, a Wahpeton, N.D., crop consultant who scouts and makes recommendations for five farmers, thinks Enlist beans will account for 20% to 30% of the bean acres in the southeast corner of the state.

Dicamba was first used in North Dakota on a commercial scale in these formulations in 2017. Many farmers were eager to use it as a tool to help combat the spread of weeds that had become resistant to other chemicals, like glyphosate (Roundup).

‘Rough, rocky road’

But the first year there were major concern over damage to sensitive “non-target” soybeans that didn’t carry the resistance. The formulations had special concerns because they could drift for miles. The chemical can “volatilize” after application and can drift during “temperature inversions.” The chemical companies instituted aggressive applicator education, which has continued in the past two years.

Favorable weather reduced the drift damage complaints in North Dakota in 2018 and 2019.

“We had only two formal complaints filed in North Dakota in 2019,” Thostenson said. “That wasn’t the case in other places. Illinois saw record complaints in 2019 and so did Indiana. It continues to be something that people are still wrestling with.”

“It’s been a rough and rocky road for this technology,” Thostenson said, noting three major label changes after its introduction.

The labels prohibited its use between two hours before sunset and an hour after sunrise. They said sprayers couldn’t go more than 10 m.p.h., a reduction from the initial limit of 15 m.p.h.. Applicators were required to apply it when winds are at least 3 m.p.h. to reduce the temperature inversion factor, but not more than 10 m.p.h.

Further, North Dakota and South Dakota implemented application cut-off application deadliess at June 30.

“In Minnesota, that’s June 20, so we have very few days left to legally spray in Minnesota," he said.

With the late planting season in 2020, there is a "lot of pause" about whether the cutoff dates would have been practical to allow spraying, even before the label was dropped by the court.

In the ruling, judges seemed to understand the impacts for farmers. “We acknowledge the difficulties these growers may have in finding effective and legal herbicides to protect their (dicamba-tolerant) crops …” the ruling states. “They have been placed in this situation through no fault of their own. However, the absence of substantial evidence to support the EPA’s decision compels us to vacate the registrations.”

Joe Ikley an NDSU Extension Service weed specialist, was working on a fact sheet that could indicate what kind of herbicides could be used in the dicamba beans if farmers can't legally use dicamba.

“There aren’t any good options in my opinion,” Thostenson said.

‘It’s a quagmire’

In lieu of an appeal, Goehring said the chemical can’t be either sold or used. He called a ban at this point in the season “almost impossible to enforce,” but said he doesn’t mean to encourage illegal use.

He said the department has received no complaints of anyone illegally using it on June 4. He suspected that if farmers can’t use the chemical they will likely be able to take it back to retailers, who will in turn receive compensation from registrants. Farmers would have more complicated issues of receiving compensation for resistant beans which couldn’t be protected in the way they were intended to be.

“I’m not going to go out and play ‘mall cop,’ with every retailer,” Goehring said. In case of a complaint, he’d have to know records from retailers to figure out who they sold it to, and in turn who had used it when. Among the complications are whether it is possible to distinguish whether a crop had been sprayed with dicamba prior to the June 3 ban, or after.

“It’s a quagmire,” he said.

The court’s opinion may be found at https://usrtk.org/wp-content/uploads/2020/06/Court-decision-on-dicamba.pdf.