EPA faces lawsuits for dicamba, glyphosate, application exclusion zone | 2020-12-22

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The Environmental Protection Agency’s decision to register dicamba for use on soybeans and cotton faces another lawsuit from the same groups that were successful in convincing the 9th U.S. Court of Appeals to overturn the claims. registrations earlier this year.

The lawsuit filed by environmental groups and the National Family Farm Coalition is the latest to bring the agency on board over its dicamba decision. The American Soybean Association and the Plains Cotton Growers also challenged the decision, alleging that extending buffer zones to protect endangered species and downwind crops from dicamba applications would drastically reduce their cultivated area and that deadlines would increase. weed pressure.

In addition, a group of states has filed a lawsuit challenging the agency’s rule of application exclusion zones, which are necessary to protect people in areas where pesticides are applied. And environmental groups last week filed their opening brief in the 9th Circuit litigation seeking to block the EPA’s registration for glyphosate.

The Center for Food Safety, Center for Biological Diversity, Pesticide Action Network North America joined with the National Family Farm Coalition to file a motion in the California Court of Appeals on Monday, seeking an order quashing the five-year unconditional registrations for the dicamba herbicides Xtendimax and Engenia, registered by Bayer and BASF respectively, and the extension of the registration for Tavium de Syngenta.

They argue that the EPA has failed to provide “substantial evidence” under the Federal Insecticides, Fungicides, and Rodenticides Act that the use of herbicides would not cause “unreasonable adverse effects” or harm. consult under the Endangered Species Act with federal wildlife agencies regarding impacts to endangered species. .

The EPA has also not given the public an opportunity to comment on a decision contained in a footnote to the registration decision to eliminate the long-standing use by national pesticide agencies of a FIFRA provision that allowed agencies to restrict pesticide use within state borders, including pesticide use by spray deadlines. State pesticide agencies have expressed opposition to the change.

The groups’ petition to the 9th Circuit does not go into details of their legal claims, which will be developed when the case goes to the briefing. In a press release announcing the lawsuit, they said the EPA “still failed in its legal obligations to ensure that the pesticide would not cause unreasonable harm to farmers and farming communities as well as the environment and people. hundreds of endangered species “.

“Less than six months ago, the Ninth Circuit categorically rejected Monsanto and the EPA’s arguments about this pesticide, detailing its substantial damage from drift,” said George Kimbrell, legal director of the Center for Food Safety. and lawyer in the case. “Rather than doing what the law and science require, the Trump administration has once again illegally promoted the profits of pesticide companies at the expense of protecting the interests of farmers or the environment. trial.”

The 9th Circuit’s decision in June to cancel registrations for Xtendimax and Engenia revealed that the EPA significantly underestimated or failed to account for the social and economic costs of allowing continued herbicide use. The court ultimately did not issue a specific order banning use for the remainder of the growing season, and the EPA said existing stocks could be used.

Syngenta, Bayer and BASF have postponed the lawsuit. Syngenta said it was looking into the complaint, but said: “In terms of action taken for drift, Tavium is the first and only dicamba premix herbicide on the market. [and] offers a combination of dicamba and S-metolachlor, providing two effective sites of action for key weed control in dicamba tolerant soybeans and cotton, ”said Paul Minehart of Syngenta, Crop Protection Communications Manager for North America.

Minehart noted that the EPA has required that a volatility reducing agent be included with all applications, extended buffer zones required for applications, and has deadlines of June 30 for soybeans and July 30 for soybeans. the cotton. “Throughout the first part of 2021, Syngenta will be hosting several Dicamba-specific training webinars,” he said, providing a web link.

Bayer, meanwhile, said he was also reviewing the lawsuit, which he said “has no immediate impact on our ability to bring XtendiMax to growers this season or the ability of growers to use XtendiMax this season. season. Growers have made it clear how vital this tool is to their weed control programs. “

The company said the latest registration decision “is based on a significant amount of additional data and learning from recent seasons, and the new product label includes new measures to help growers use the product even more. of success in the future. We believe this new registration and new product label effectively address the concerns raised by the court earlier this year. “

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BASF said it was aware of the petition and had “worked with the EPA to provide them with all the data they need to make a science-based registration decision that meets applicable legal criteria. and addresses concerns highlighted by the 9th Circuit Court earlier this year. BASF has a vested interest in defending our herbicide registration Engenia and is currently evaluating our legal options. We remain fully committed to ensuring that growers have access to the solutions of protection of the crops they rely on, including the herbicide Engenia. “

Glyphosate dossier filed

Groups pursuing the EPA’s interim registration decision on glyphosate said in their opening brief in Circuit 9 that the EPA’s cost-benefit analysis “consists of a single sentence, where the EPA completely fails to weigh the substantial costs of registration: among them, the costs to farmers of the glyphosate-resistant weed outbreak and the costs to wildlife exposed to the spray, especially critical pollinators and iconic monarchs. .

“EPA completely failed to consider and assess the economic costs resulting from the widespread use of glyphosate, ”the groups said. “These costs include both glyphosate resistant weeds and glyphosate drift damage. “

Although it announced new measures to control spray drift, including a spray ban during temperature inversions and other application restrictions, “at no time did the EPA actually evaluate the effectiveness of these mitigation measures on which he based his determination ”, indicates the group’s brief.

Pursuit of the application exclusion zone

Attorneys General in New York, Maryland, Illinois, California and Minnesota sued the EPA over its October 30 AEZ rule, which amended a 2015 rule so that the AEZ ” it is only applicable and enforceable on the property of an agricultural employer and does not extend to adjacent areas and no longer applies to immediate family members of agricultural owners, ”they said in a statement from hurry. “Rolling back also allows pesticide applications to be made while people not employed by the farm are present.”

The EPA did not justify the changes with the use of an adequate cost-benefit analysis, the complaint says. “The EPA’s cost-benefit analysis fails to justify the changes to the [AEZ]; the agency’s explanation of the basis for these changes goes against the evidence submitted to the agency; and the EPA has totally ignored its obligation to identify and address the disproportionately large and negative effects of this policy change on minority and low-income populations, ”the complaint states.

States will incur additional compliance and enforcement costs associated with the rule, they said.

“It is likely that any increase in pesticide exposure caused by the final rule will in turn increase the uncompensated health care costs for New York’s public and private hospitals,” the lawsuit said.

When asked about the lawsuits, the EPA said it was not commenting on the pending litigation.

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