Ctr. for Biological Diversity v. United States Envtl. Prot. Agency

JurisdictionUnited States,Federal
PartiesCenter for Biological Diversity, et al., Plaintiffs, v. United States Environmental Protection Agency, et al., Defendants, and Bayer Cropscience LP, et al., Intervenor-Defendants.
Decision Date05 February 2024
CourtU.S. District Court — District of Arizona
Docket NumberCV-20-00555-TUC-DCB

WO

ORDER
HON DAVID C. BURY UNITED STATE JUDGE

The Court finds the EPA violated FIFRA notice and comment mandates for issuing “new use” pesticide registrations for OTT dicamba for DT crops (cotton and soybean). For the reasons explained below, the Court vacates the 2020 registrations for XtendiMax, Enginia, and Tavium.

A. HISTORIC AND PROCEDURAL BACKGROUND

Plaintiffs challenge the registrations issued in 2020 and amendments made in 2022 and 2023 by the Defendant, the United States Environmental Protection Agency (EPA) for over-the-top (OTT) use of dicamba products manufactured by the Intervenor Defendants, agrochemical companies. Plaintiffs allege violations of the Federal Insecticide, Fungicide, Rodenticide Act (FIFRA), the Endangered Species Act (ESA), and the Administrative Procedures Act (APA).

Dicamba, a chemical herbicide, combats weeds and has been used for more than fifty years. Dicamba is an effective weed killer, but its toxicity is not limited to weeds; it kills broadleaf plants, generally, including desirable plants, bushes, and trees. Dicamba easily moves off-field due to wind drift during spraying and is volatile, meaning it evaporates into a gas during spraying if there is a temperature inversion[1] or even hot weather can cause it to vaporize after spraying. Either way, its volatility causes it to reach nontarget plants offsite, i.e., off-field, due to wind drift. Originally, dicamba was registered for limited use, largely, in late winter or early spring before crops were planted or in the early growing season for post-emergent use on crops, like wheat and corn, that are naturally tolerant to dicamba. Nat'l Fam. Farm Coal. v. U.S. Env't Prot. Agency (NFFC) (Monsanto)[2], 960 F.3d 1120, 1125 (9th Cir. 2020).

After many years, many weeds developed a resistance to glyphosate, the main ingredient in the original dicamba, “Round-up,” products. Monsanto and other agrochemical companies developed “low-volatility” dicamba products, which in combination with deregulation in 2015 of genetically engineered dicamba-tolerant (DT) crops (cotton and soybean), opened the door for post-emergent OTT spaying during the growing season of dicamba products on DT crops (cotton and soybean). Id. at 1125-26.

In 2016, EPA granted three low-volatility OTT dicamba products two-year conditional registrations, as follows: Monsanto Company (now Bayer) for XtendiMax; Corteva (formerly DuPont) for FeXapan, and BASF for Enginia. In response to soring numbers of complaints about offsite damage due to dicamba drift during the 2017 growing season, Monsanto proposed, and EPA adopted by amendment a more restrictive use and corresponding label restrictions for the OTT dicamba products. The 2018 growing season saw similar complaints. Id. at 1126-1128.

The conditional registrations for all three OTT dicamba products were set to expire in 2018, but on October 31, 2018, the EPA approved and granted requests for extensions and issued “conditional two-year amended registrations.” Id. at 1124. EPA imposed further use restrictions for OTT application of dicamba herbicides to DT soybeans and cotton, most importantly as follows: (1) application was permitted only between one hour after sunrise and two hours before sunset (rather than any time between sunrise and sunset); (2) only two OTT applications were permitted per crop for soybeans, with the last application made no later than forty-five days after planting; (3) only two OTT applications were permitted per crop for cotton, with the last application made no later than sixty days after planting; (4) an omnidirectional, in-field fifty-seven-foot buffer was required in certain counties to protect listed plant species; and (5) applications could be made only by certified applicators.” Id. at 1130.

A lawsuit followed, with Plaintiffs prevailing. The court revoked the EPA's conditional “new use” registrations for dicamba-based herbicides for post-emergent, OTT spraying of genetically modified DT soybeans and cotton. Id. at 1144-45. In NFFC (Monsanto), the court held EPA violated FIFRA six ways, id. at 1124, 1144 (summarizing holdings), separated into two parts: 1) EPA “substantially understated three risks it acknowledged” and 2) “also entirely failed to acknowledge three other risks.” Id. at 1124. The court's detailed decision was also filled with factual record findings recounting catastrophic results for farmers and the environment, such as millions of acres of off-field dicamba drift, as well as damage to crops, wild plants, and native ecosystems each growing season since EPA approved OTT spraying in 2016. Id.

The first group of holdings in NFFC (Monsanto) related to costs to farmers from dicamba drift, including that the EPA understated the dicamba amount sprayed (and thus the drift harm from it), id. at 1124, 1136, improperly minimized the amount of underreporting of drift damage, id. at 1137-38, and, despite the record evidence the registration decision “refused to quantify or estimate the amount of damage caused” by drift as an economic cost, id. at 1138.

The second group of violations noted in NFFC (Monsanto) were predicated on the court's finding that the EPA based registration on unrealistic and unanalyzed mitigation, failed to account for the substantial non-compliance with the dicamba use instructions or grapple with the near impossibility of following the label in real-world farming conditions, and what that would mean for increased drift damage. Id. at 1144. In other words, the EPA improperly based its approval on the premise that the label's mitigation would be followed and, accordingly, limit off-field drift, while the record evidence showed that label instructions were “difficult if not impossible” to follow. Id. at 1124. The court held the EPA failed to recognize and factor in the “clear” economic cost from drift damage coercing farmers to defensively adopt dicamba-tolerant crops, and those anti-competitive, monopolistic ramifications. Id. EPA entirely failed to consider the social costs to farming communities from pitting neighbor against neighbor related to drift damage to crops, and trees and gardens. Id. at 1143.

On June 3, 2020, the United States Court of Appeals for the Ninth Circuit decided NFFC (Monsanto) finding that substantial evidence did not support the EPA's registration decisions because it was contrary to the record and the agency had “failed to perform a proper analysis of the risks and the resulting costs of the uses.” Id. at 1144. Relevant here, the appellate court's jurisdiction in NFFC (Monsanto) hinged on its conclusion that the October 31, 2018, decision to register the three dicamba herbicides for OTT application qualified as an “order” issued by the EPA. Id. at 1132. Equally important, the court concluded “that the 2018 registration decision was issued by the EPA “following a public hearing,” because the decision arose “from a notice-and-comment period held prior to the related 2016 registration decision.” Id., see also 7 U.S.C. § 1326n(b) (direct appellate review following a public hearing).

The court vacated the registration decision because remand without vacatur is warranted “only in limited circumstances.” Id. at 1144 (quoting Pollinator Stewardship Council v. EPA, 806 F.3d 520, 532 (9th Cir. 2015)). The court “weigh[ed] the seriousness of the agency's errors against the disruptive consequences of an interim change that may itself be changed.” Id. at1145. The court considered “the extent to which either vacating or leaving the decision in place would risk environmental harm” and “also looked at whether the agency would likely be able to offer better reasoning or whether by complying with procedural rules, it could adopt the same rule on remand, or whether such fundamental flaws in the agency's decision make it unlikely that the same rule would be adopted on remand.' Id.

The court expressly addressed the practical effects of the decision, including the impact on growers who had already purchased DT soybean and cotton seeds, and “acknowledge[] the difficulties these growers may have in finding effective and legal herbicides to protect their DT crops.” Id. at 1145. Nevertheless, it vacated the registrations because the “fundamental flaws” in the EPA's analysis were so substantial that it was exceedingly “unlikely that the same rule would be adopted on remand.” Id.

On June 8, 2020, EPA issued the “Final Cancellation of Three Dicamba Products” (Final Cancellation Order) for OTT use of dicamba but allowed for already purchased products to be used in the 2020 growing season. (P MSJ, SOF, Stevenson Decl., Ex. J: Final Cancellation Order (June 8, 2020) (Doc. 161-10) at 2-13.) Then within approximately four months of the June 3, 2020, NFFC (Monsanto) decision, on October 27, 2020, EPA again approved OTT dicamba spraying. EPA issued the three dicamba registrations at issue in this case: Bayer Defendant Intervenor's product XtendiMax (P MSJ, SOF, Ex. A13 (AR[3]A.13) (Doc. 158-8) at 2-37); BASF Defendant Intervenor's product Enginia, id., Ex. A12 (AR A.12) (Doc. 158-7) at 2-39), and Syngenta Defendant Intervenor's product Tavium Plus Vapor Grip, id., Ex. A05 (AR A.5) (Doc. 158-4) at 1-56). Tavium was registered in 2019 with an automatic expiration date of December 20, 2020.

All three registrations had been registered conditionally for two years but were issued in 2020, unconditionally, for five years. All three had been and remained classified as restricted use, including similar but...

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