- DTN Headline News
Dicamba Lawsuit Setback
Tuesday, January 15, 2019 2:01PM CST
By Emily Unglesbee
DTN Staff Reporter

ROCKVILLE, Md. (DTN) -- The U.S. Ninth Circuit Court of Appeals dismissed a lawsuit against dicamba last week, but left open a door for the plaintiffs to expedite a new lawsuit in 2019.

The original lawsuit, which was filed by four farm and environmental groups in 2017, argued that the EPA's 2016 registration of XtendiMax for over-the-top use on soybean and cotton fields was unlawful. When that registration ended and EPA renewed the dicamba registration in 2018, Monsanto (now Bayer) and EPA argued that the court should dismiss the lawsuit as moot.

The court agreed, but the panel of judges also ruled that the plaintiffs, National Family Farm Coalition et al., should be allowed to fast-track a new lawsuit based on the new 2018 dicamba registration.

"We recognize that Petitioners may face the obstacle of bringing a challenge to the EPA's registration decision before the expiration of the current registration," the judges wrote. "Accordingly, if Petitioners bring a challenge in this Court to the 2018 registration decision of the EPA, we direct the Clerk of the Court to set an expedited schedule for briefing and oral argument."

An expedited schedule means that a process that often takes years can be compressed into a matter of months, noted George Kimbrell, an attorney for one of the plaintiffs, the Center for Food Safety. That makes it more likely that the court could issue a final decision on the legality of the dicamba registrations in 2019.

"We're resolved to continue the litigation and take the path the court has laid out for us," Kimbrell told DTN.

"This is certainly justice delayed, not justice denied," he added. "The judges didn't say anything about whether the conduct of EPA in approving these pesticides was lawful. So while it's unfortunate that EPA and Monsanto have wriggled out of this for now, we'll continue to fight to protect farmers and the environment."

The National Family Farm Coalition et al. filed a new petition against the EPA almost immediately after the court's ruling. The new petition, like the old one, asks the Ninth Circuit Court of Appeals to rule that EPA violated its duties under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA) when it re-registered the dicamba herbicide in October 2018.

However, the plaintiffs now face an additional hurdle -- the partial shutdown paralyzing large swaths of the federal government.

The Department of Justice is seeking to postpone any civil litigation that involves the federal government, and this dicamba court case has fallen under that scope, Kimbrell noted.

Specifically, the DOJ's "FY 2019 Contingency Plan" for a shutdown states that: "Litigators will continue to approach the courts and request that active cases, except for those in which postponement would compromise to a significant degree the safety of human life or the protection of property, be postponed until funding is available."

The National Family Farm Coalition et al. will have to decide whether or not to challenge this request, Kimbrell said, since a court can rule against the DOJ's petition. "If a court denies such a request and orders a case to continue, the Government will comply with the court's order, which would constitute express legal authorization for the activity to continue," the DOJ contingency plan states.

The court's final ruling on a new challenge to the 2018 dicamba registration would have a large impact on farmers and applicators. Industry estimates for dicamba-tolerant Xtend soybean and cotton acreage have reached 60 million acres in 2019, and other dicamba-tolerant crops, such as corn and sugarbeets, are expected to be commercialized in the coming years.

As a result, industry groups such as the National Cotton Council, the American Soybean Association and the American Sugarbeet Growers' Association, have all submitted amicus briefs -- legal documents offering relevant information and additional arguments -- in support of Monsanto and the EPA in this litigation.

You can find the Ninth Circuit's ruling here: http://cdn.ca9.uscourts.gov/….

You can find DTN's previous reporting on this case here: https://www.dtnpf.com/… and here: https://www.dtnpf.com/….

Emily Unglesbee can be reached at Emily.unglesbee@dtn.com.

Follow her on Twitter @Emily_Unglesbee.


blog iconDTN Blogs & Forums
DTN Market Matters Blog
Editorial Staff
Monday, January 14, 2019 11:24AM CST
Friday, January 11, 2019 1:10PM CST
Monday, January 7, 2019 11:48AM CST
Technically Speaking
Editorial Staff
Monday, January 7, 2019 8:15AM CST
Monday, December 31, 2018 1:46PM CST
Monday, December 24, 2018 8:54AM CST
Fundamentally Speaking
Joel Karlin
DTN Contributing Analyst
Monday, January 14, 2019 1:56PM CST
Thursday, January 10, 2019 12:53PM CST
Friday, December 28, 2018 1:06PM CST
DTN Ag Policy Blog
Chris Clayton
DTN Ag Policy Editor
Monday, January 14, 2019 9:43AM CST
Thursday, January 10, 2019 2:17PM CST
Wednesday, January 9, 2019 4:56PM CST
Minding Ag's Business
Katie Behlinger
Farm Business Editor
Monday, January 7, 2019 4:47PM CST
Tuesday, December 18, 2018 4:55PM CST
Monday, December 10, 2018 2:16PM CST
DTN Ag Weather Forum
Bryce Anderson
DTN Ag Meteorologist and DTN Analyst
Friday, January 11, 2019 12:18PM CST
Wednesday, January 9, 2019 2:11PM CST
Monday, January 7, 2019 9:03AM CST
DTN Ethanol Blog
Editorial Staff
Tuesday, January 15, 2019 1:01PM CST
Tuesday, January 15, 2019 8:11AM CST
Friday, January 4, 2019 4:43PM CST
DTN Production Blog
Pam Smith
Crops Technology Editor
Thursday, December 20, 2018 3:57PM CST
Friday, November 16, 2018 4:00PM CST
Thursday, November 1, 2018 6:46PM CST
Harrington's Sort & Cull
John Harrington
DTN Livestock Analyst
Thursday, December 20, 2018 3:01PM CST
Friday, December 7, 2018 4:51PM CST
Thursday, November 29, 2018 5:04PM CST
South America Calling
Editorial Staff
Wednesday, January 9, 2019 5:38PM CST
Wednesday, January 2, 2019 5:15PM CST
Wednesday, December 19, 2018 9:16AM CST
An Urban’s Rural View
Urban Lehner
Editor Emeritus
Friday, January 11, 2019 1:35PM CST
Wednesday, January 2, 2019 6:30AM CST
Monday, December 24, 2018 10:56AM CST
Machinery Chatter
Dan Miller
Progressive Farmer Senior Editor
Friday, January 11, 2019 2:00PM CST
Wednesday, January 2, 2019 4:28PM CST
Tuesday, November 20, 2018 11:58AM CST
Canadian Markets
Cliff Jamieson
Canadian Grains Analyst
Monday, January 14, 2019 3:51PM CST
Friday, January 11, 2019 3:02PM CST
Thursday, January 10, 2019 4:43PM CST
Editor’s Notebook
Greg D. Horstmeier
DTN Editor-in-Chief
Monday, December 31, 2018 7:02AM CST
Tuesday, December 18, 2018 4:49PM CST
Monday, November 26, 2018 9:13PM CST
Copyright DTN. All rights reserved. Disclaimer.
Powered By DTN