DTN: New Dicamba Registration Complicates Lawsuit in the Ninth Circuit Court of Appeals

DTN writer Emily Unglesbee reported this week that, “EPA’s decision to continue the registration of three dicamba herbicides has reverberated far beyond D.C. — through Midwest soybean fields, Southern cotton fields and all the way to Seattle, Washington, where the U.S. Ninth Circuit Court of Appeals is mulling a lawsuit over these very herbicides.

“Monsanto and EPA are now arguing that this lawsuit, which claims the original dicamba registrations are illegal and should be vacated, is ‘moot’ and should be dismissed entirely.

The court’s decision could have repercussions for U.S. farmers, who — operating under the expectation that dicamba applications will remain legal — plan to plant 60 million acres of dicamba-tolerant soybeans and cotton in 2019.”

The DTN article stated that, “The lawsuit was first filed against EPA in 2017 by four farm and environmental groups: National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity and Pesticide Action Network North America. The groups argue that the federal agency broke the law when it first registered three dicamba herbicides (XtendiMax, FeXapan and Engenia) in 2016 for over-the-top use on Xtend soybean and cotton crops, by ignoring key requirements of the Endangered Species Act and the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).

“In August, three judges from the Ninth Circuit Court of Appeals heard arguments from both sides (see the video here: https://www.youtube.com/…) and then retired to consider their ruling.

“Then just two days after EPA’s dicamba registration decision landed late on Halloween night 2018, lawyers for Monsanto (now part of Bayer) filed a motion to dismiss the lawsuit entirely.

“‘As a result of EPA’s issuance of the new, superseding 2018 Registration, the 2016 Registration that Petitioners challenge is no longer in force, and a court order vacating that registration would have no legal or practical effect,’ the lawyers wrote in their motion, available via the court’s electronic case filing system. ‘The petition for review of the 2016 Registration is therefore moot, and this Court accordingly should dismiss the petition for lack of jurisdiction.'”

Ms. Unglesbee noted that, “Now all eyes rest on the judges of the Ninth Circuit, who will issue a decision on Monsanto’s motion in the coming weeks or months.”

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