“Farm groups are looking to the Trump administration to quickly appeal a ruling blocking the use of dicamba herbicide and issue guidance on how the industry should address the issue.
Some states have told farmers they can no longer apply the herbicide over the top of crops as a result of the ruling last Wednesday by the Ninth U.S. Circuit Court of Appeals vacating registrations for several formulations, Bayer’s Xtendimax, BASF’s Engenia and Corteva’s FeXapan.
“The Ninth Circuit’s opinion potentially creates havoc for many soybean and cotton farmers,” says Roger McEowen, an agricultural law professor at the Washburn University in Kansas. “The next few days should be instructive in learning how far-reaching the court’s decision will be for the present growing season.”
He wrote in a blog post that EPA has three main options: Ask the full Ninth Circuit to review the ruling that was made by a three-judge panel; ask the court to stay the opinion until the soybean and cotton growing seasons are over; or ignore the ruling outside the Ninth Circuit. That practical impact of the last option would be that “only farmers in Arizona would be impacted by the court’s decision,” McEowen said. “This approach …. is a tactic that the IRS often employs in tax cases that it uses.”
EPA hasn’t tipped its hand. EPA Administrator Andrew Wheeler said in a statement issued Friday evening that his agency “is assessing all avenues to mitigate the impact of the court’s decision on farmers.”
As a result of the uncertainty about EPA’s plans, a growing number of states have decided it’s all right to use dicamba. “For the order to take effect in Wisconsin, [EPA] must take action to revoke the registration of these products,” that state’s Department of Agriculture said.
Other states adopting a “business as usual approach” include Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Missouri, Nebraska, North Dakota, Ohio, Texas and Wisconsin.
Illinois and Minnesota have said the products can’t be used.
In a statement Monday, the plaintiffs — the Center for Food Safety, the Center for Biological Diversity, National Family Farm Coalition and Pesticide Action Network North America — said “EPA should immediately confirm to the states that these uses are illegal. EPA’s failure to do so to this point is a dereliction of the agency’s duty to farmers and the public. We represent farmers, including many who have suffered years of drift damage from these harmful dicamba products. They must not be subjected to a fourth year of rampant injury to their crops from dicamba drift.””
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