On Feb. 6, a federal court in Arizona vacated EPA’s 2020 registrations for dicamba products to be used in over-the-top (OTT) applications in soybeans or cotton. As it currently stands, this means no OTT applications of XtendiMax (Bayer), Engenia (BASF), and Tavium (Syngenta) for the upcoming 2024 growing season, until the matter can be reviewed by the EPA.
The court found the EPA to be in violation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) when it re-authorized dicamba back in 2020. “Being aware of the practical effects’ of vacatur and difficulties these growers may have in finding effective and legal herbicides to protect dicamba-tolerant crops due to vacatur, the court nevertheless found the seriousness of the agency error, including in part its failure to assess risks and costs for non-users of over-the-top dicamba compelled vacatur,” said the court in its ruling.
Dicamba’s approval history
This is the second time dicamba’s approval from EPA has been vacated in court. In June of 2020, the agency’s original authorization for the herbicide was vacated by the U.S. Court of Appeals for the Ninth Circuit. By the end of October 2020, the EPA successfully reauthorized dicamba.
Whether or not EPA can react quickly enough to once again re-authorize dicamba for over-the-top use for the 2024 growing season remains an open question at this time.
“We don’t really know the answer yet,” says Larry Steckel, weed science specialist at the University of Tennessee. “In 2020, EPA ruled that farmers could use what they had already purchased. More could not be shipped or sold, but they could use what they already had in hand. I haven’t heard anything yet on how EPA plans to enforce this. We’ll have to wait and see what happens this time.”
Growers who plan to use dicamba tolerant soybeans or cotton may now have to consider alternatives.
“Some geographies have switched over 100% to Enlist, but there are some geographies that are still 60% to 70% Xtend, so I do think it hurts if we lose dicamba, but what will likely happen is farmers will turn to Liberty instead of dicamba,” says Bill Johnson, weed science specialist at Purdue University. “It’s not as bad as it was four years ago when we didn’t have the XtendFlex trait to use. I think it’s just going to drive more Liberty use.”
For growers that have planned to use dicamba this growing season, Johnson offers the following advice. “If I were the grower who has made purchases of the three dicamba products, I’d be talking with the retailer and making some decisions on a plan B if they are unable to use what they’ve already purchased.”
“We respectfully disagree with the ruling against the EPA’s registration decision, and we are assessing our next steps,” wrote Bayer in a statement. “We also await direction from the EPA on important actions it may take in response to this ruling.”
BASF also reacted to the news saying in a statement, “BASF is reviewing the order and assessing its legal options while awaiting direction from the U.S. EPA on actions it will take as a result of the order. BASF remains committed to working with the EPA and other stakeholders to identify workable, durable weed control solutions for dicamba-tolerant crops and serving its customers by offering effective crop protection solutions.”
Syngenta echoed similar disappointment saying, “We are reviewing our legal options and await the EPA’s guidance in connection with the court’s decision. The use of dicamba is integral to controlling broadleaf weeds and invasive plants. It is imperative that farmers have access to newer dicamba technologies as they work to protect their livelihoods, supply food, and meet ever-increasing weed control challenges in an environmentally safe and sound way.”
Commodity groups have also begun to react to the news. The National Cotton Council (NCC) is urging the EPA to quickly take action to appeal the ruling, saying that it will be felt across the cotton belt as dicamba-tolerant varieties account for more than 75% of U.S. cotton acres.
In a news release on their website NCC says, “The ruling comes at an especially problematic time of the year as many producers have already made their cropping decisions, secured seed, and are doing preparatory field work. The timing of this ruling also will not allow for the production of seed with alternative herbicide technology in time for 2024 planting. Without widely available alternatives, losing the foundational herbicides in the dicamba-tolerant weed control system will put millions of acres in jeopardy of reduced production. The loss of over-the-top dicamba products exacerbates an already difficult economic situation with current prices below the costs of production.”