Earlier this month (June 3), the 9th Circuit Court in San Francisco removed the Environmental Protection Agency’s registrations for three Dicamba herbicides– Bayer’s Xtendimax, BASF’s Engenia and Corteva’s FeXapan.
Last week, the EPA issued a cancellation rule which allows farmers who had bought the chemical before the June 3rd ruling to use the product but cancelled any new orders.
Jeff Stein is licensed to practice law in the Federal Court system. He says the dicamba ruling came down from the 9th Circuit Court rather than a court in a more agricultural area because of something called “forum shopping.”
Stein says at the point of the June 3 ruling, the EPA had a few options. However, by issuing the cancellation order, the EPA is “insulating” the three companies who make the products ruled upon.
This insulation can protect Bayer, BASF and Corteva from further litigation if the Supreme Court was to rule against dicamba. By doing this cancellation order, Stein says you stop production and sales as of June 3rd, until future Federal litigation settles.
This situation isn’t over though. Stein says it’s possible a lawsuit could be filed in a different district court to challenge EPA’s decision. This would then give conflicting rulings in different Federal districts, which then increases the likelihood the US Supreme Court would get involved. The high court only hears about 3% of cases submitted to them each year, and conflicting rulings in different jurisdictions are the kind they like to hear.
Stein says the 9th Circuit Court is the court that has historically been overturned the most by the US Supreme Court.
The cutoff date for use of dicamba products in South Dakota is June 30.
