EPA has defended its decision to allow continued use of dicamba on soybeans and cotton, telling the Ninth U.S. Circuit Court of Appeals that it is in compliance with the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) in allowing the use of the three dicamba products through July 31.
EPA issued an order rescinding registration of Bayer's Xtendimax, BASF's Engenia and Corteva's FeXapan, and said in its court filing that action “only makes it illegal to distribute or sell that pesticide. It does not outlaw use of products already legally purchased.”
In the filing on Tuesday, lawyers for the EPA argued that spraying a pesticide that is not registered is not illegal; instead, it is only illegal to buy or sell an unregistered pesticide. EPA also said it anticipated illegal applications of dicamba could be a problem if the herbicide is immediately banned.
“When a registration is vacated, misuse of that product is no longer a violation of FIFRA,” EPA said. “The Cancellation Order addresses this indirect and potentially disruptive environmental harm. The Order plugs a regulatory gap by ensuring that existing stocks of these newly-unregistered pesticides are used safely and appropriately, and only for a limited period of time.”
Further, the agency said the court does not have jurisdiction over the decision because it is a separate administrative order than the registration that was vacated. The parties filing the action to halt EPA’s order to allow the products to be applied through July 31 have until today to file their reply.
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