Registrants ask for rehearing of Ninth Circuit’s dicamba decision

basf logoUPDATED — BASF, Bayer and Corteva Agriscience filed separate petitions July 20 with the U.S. Court of Appeals for the Ninth Circuit requesting a rehearing of its June 3 decision. The court’s ruling vacated Environmental Protection Agency registrations for three dicamba-based herbicides without giving two registrants an opportunity to be heard.

The three dicamba products affected are Engenia from BASF, XtendiMax with VaporGrip Technology from Bayer and FeXapan Plus VaporGrip from Corteva. Growers have until July 31 to use up existing stocks they had on hand June 3.

Originally, several environmental groups brought the suit in 2018 against just XtendiMax when it was owned by Monsanto, which has since been acquired by Bayer. But the court issued a ruling covering all three other-the-top dicamba formulations.

Tavium, a premix that contains dicamba and S-metolachlor from Syngenta, is not part of the suit because it was registered a year later.

Specifically, the petitions requires a review of the decision by a panel of 11 judges from the Ninth Circuit instead of the three-judge panel that issued the previous decision. This request for “en banc” review is necessary to correct errors by the panel in issuing a decision inconsistent with basic due process and administrative law principles, according to BASF.

The panel’s decision undermined the authority of the EPA to make science- and data-based regulatory decisions to determine which herbicide products are safe and effective to meet the challenges farmers face every season, BASF said in a statement. The EPA should be allowed to continue following a science-based approach to evaluate and manage ecological risks, while balancing agricultural and societal benefits when reviewing registration applications.

The ruling was unprecedented and devastating to tens of thousands of farmers who have counted on over-the-top applications of dicamba-based products to control resistant weeds across tens of millions of dicamba-tolerant soybean and cotton acres, according to BASF.

 

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