‘The Deal with Dicamba’ the focus of May 15 NALC webinar

By Drew Viguet
National Agricultural Law Center
U of A System Division of Agriculture

FAYETTEVILLE, Ark. — The rollercoaster of changing state and federal policies regarding dicamba has kept producers on their toes in recent years. Earlier this year, a federal court in Arizona called into question the future of over-the-top dicamba use for producers.

Brigit Rollins, staff attorney for the National Ag Law Center, will present a webinar on "The Deal with Dicamba" on May 15. (U of A System Division of Agriculture file photo)

“The Feb. 6 decision from the U.S. District Court of Arizona was another major development in the ongoing saga impacting producers’ methods for protecting their crops,” Brigit Rollins, staff attorney for the National Agricultural Law Center, said. “Pending a possible appeal, producers will not be able to rely on over-the-top dicamba as they may have in the past.”

On Feb. 14, the U.S. Environmental Protection Agency issued a notice stating that it would allow farmers and producers to use their remaining dicamba stocks.

“We’ve seen this in the past, where the EPA allows producers to use dicamba stock that was purchased prior to a ruling,” Rollins said. “The end date for sale and distribution of dicamba stocks, as well as the end date for use of existing stocks, varies from state to state, so it’s important that producers consult the EPA’s notice to ensure they are complying with the new policy.”

May 15 webinar

Rollins will discuss dicamba during the next National Agricultural Law Center webinar, which will be held on May 15. The webinar, titled, “The Deal with Dicamba: Overview of Recent Legal Developments,” will begin at 11 a.m. Central/Noon Eastern. The event has no cost and registration is available online.

A recurring theme in the ongoing saga of dicamba lawsuits is environmental plaintiffs claiming the EPA has violated both the Endangered Species Act, or ESA, and the Federal Insecticide, Fungicide, and Rodenticide Act, known as FIFRA.

“A large part of why we get these court decisions impacting access to products such as dicamba is due to the EPA’s approach to meeting its ESA responsibilities while carrying out actions under FIFRA,” Rollins said. “The EPA is in the process of developing its new policy for how it meets these responsibilities. Because of this, we are expecting future changes to how producers are able to use pesticide products.”

Rollins discusses the history of dicamba and policy in her article series “The Deal with Dicamba,” which is available online on the NALC website. She also reviewed the EPA’s new ESA-FIFRA policy in a previous NALC webinar, which is available to watch online.

“Brigit is an expert in pesticide developments and policy,” NALC Director Harrison Pittman said. “She has created great NALC resources on this topical area, such as the NALC Endangered Species Act Manual, and has presented excellent webinars in the past.”

The NALC has had two prior “The Deal with Dicamba” webinars presented by Rollins. Recordings can be found online in the NALC’s Webinar Series archive.

For information about the National Agricultural Law Center, visit nationalaglawcenter.org or follow @Nataglaw on X. The National Agricultural Law Center is also on Facebook and LinkedIn.

For updates on agricultural law and policy developments, subscribe free of charge to The Feed, the NALC’s twice-monthly newsletter highlighting recent legal developments facing agriculture.

About the National Agricultural Law Center

The National Agricultural Law Center serves as the nation’s leading source of agricultural and food law research and information. The NALC works with producers, state and federal policymakers, Congressional staffers, attorneys, land grant universities, and many others to provide objective, nonpartisan agricultural and food law research and information to the nation’s agricultural community.

The NALC is a unit of the University of Arkansas System Division of Agriculture and works in close partnership with the USDA Agricultural Research Service, National Agricultural Library.

Dicamba use could be shelved for farmers in 2024

by George Jared (gjared@talkbusiness.net)

Farmers may not be able to use the dicamba herbicide during the 2024 growing season. A federal court in Arizona on Tuesday (Feb. 6) blocked the use of three dicamba products – XtendiMax, Engenia and Tavium.

It’s not certain if or when the decision will be appealed and its unknown what the timeline for when the products will be removed, said Harrison Pittman, the director of the National Agricultural Law Center. Pittman told attendees at the Arkansas State University Agribusiness Conference on Wednesday (Feb. 7) morning he was surprised how quickly the court ruled.

“When I woke up yesterday, I would have told you that you are a long way off on a decision,” he said. “When I got off my flight they had issued a decision. It stunned me. They ruled that the EPA didn’t properly register the products. They are ordering it to be vacated from the market.”

Dicamba use could be shelved for farmers in 2024

Arizona federal court vacates over-the-top dicamba registration

By Drew Viguet
National Agricultural Law Center
U of A System Division of Agriculture

FAYETTEVILLE, Ark. — A federal court in Arizona has overturned the 2020 dicamba registrations that allowed over-the-top applications of three dicamba products, XtendiMax, Engenia and Tavium, leaving a cloud of uncertainty for farmers and defendants.

Tuesday’s decision is the latest in an almost decade-long legal back-and-forth over the availability and use of dicamba.

ROLLINS: Arizona court decision leaves uncertainty for farmers, defendants. (U of A System Division of Agriculture file photo)

In an order from the U.S. District Court of Arizona, the court concluded that the U.S. Environmental Protection Agency failed to comply with the Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA’s, public notice-and-comment requirements when approving a “new use” of dicamba. The court order is available online.

Dicamba is an herbicide that targets broad-leafed plants and is used to combat weeds that have grown resistant to glyphosate, including palmer amaranth, commonly known as pigweed. Prior to 2016, dicamba has been used as a pre-emergent, meaning that it was applied to the ground in late winter or early spring before crops were planted. Older forms of dicamba were prone to volatility causing the pesticide to move off target and damage nearby fields. By applying dicamba as a pre-emergent, risk of off-target damage was greatly reduced. However, in 2015, Monsanto Co., which is now part of Bayer, released a line of soybean and cotton seeds engineered to be resistant to dicamba. The following year, EPA approved over-the-top use of dicamba for the first time. Several companies brought dicamba products to market.

“The decision to approve over-the-top use of dicamba was very controversial,” Brigit Rollins, staff attorney for the National Agricultural Law Center, said. “Lawsuits challenging that decision were filed almost right away.”

According to Bayer’s website, its dicamba products are registered for use in all but 14 of the 48 contiguous states, including Arkansas.

The Feb. 6 court order from the U.S. District Court of Arizona is not the first time the dicamba registration has been vacated. In June 2020, the U.S. Ninth Circuit Court of Appeals vacated the then-current dicamba registration for violating FIFRA. Following that cancel order, EPA re-registered dicamba for over-the-top use through 2025. Once again, the same parties that had challenged the previous dicamba registration filed a lawsuit against EPA for re-approving over-the-top use.

Wait and see
For now, it’s a wait-and-see situation for farmers who use the products and the defendants.

In an online statement, defendant-intervenor Bayer, said “We respectfully disagree with the ruling against the EPA's registration decision, and we are assessing our next steps. We also await direction from the EPA on important actions it may take in response to the ruling.”

“Now that the court has issued its decision, we’re waiting to see what both EPA and the defendants will do next,” Rollins said. “Last time around, EPA issued its formal cancellation order pretty quickly after the decision, but the agency did allow people who had already purchased dicamba for the 2020 growing season to use up their existing stocks. We’re waiting to see if EPA will do the same on this go around.”

Rollins added that it’s likely the defendants will appeal this ruling.

“If they do, we’ll be waiting to see whether the district court’s ruling is stayed while the appellate court considers the case,” she said.

While the timeline on EPA’s response to the court’s order is uncertain, the decision by the Arizona federal court indicates a forthcoming Notice of Intent to Cancel over-the-top use of dicamba. Currently, Arizona is the only state in the Ninth Circuit where dicamba is available for over-the-top use.

Mention of product names does not imply endorsement by the University of Arkansas System Division of Agriculture.

More on the history of dicamba can be found on the NALC website in a series authored by Rollins, “The Deal with Dicamba.”

Rollins is set to discuss the future of pesticides in the western U.S. at the Western Agricultural and Environmental Law Conference. The event will be held at the University of Nevada, Reno, on June 13-14 with a livestream option available. Conference information and registration is available online.  

For information about the National Agricultural Law Center, visit nationalaglawcenter.org or follow @Nataglaw on x. The National Agricultural Law Center is also on Facebook and LinkedIn.

For updates on agricultural law and policy developments, subscribe free of charge to The Feed, the NALC’s newsletter highlighting recent legal developments facing agriculture, which issues twice a month.

About the National Agricultural Law Center
The National Agricultural Law Center serves as the nation’s leading source of agricultural and food law research and information. The NALC works with producers, state and federal policymakers, Congressional staffers, attorneys, land grant universities, and many others to provide objective, nonpartisan agricultural and food law research and information to the nation’s agricultural community.

The NALC is a unit of the University of Arkansas System Division of Agriculture and works in close partnership with the USDA Agricultural Research Service, National Agricultural Library.