The American Soybean Association (ASA) is pleased that the U.S. Court of Appeals for the Ninth Circuit has chosen to support the Environmental Protection Agency’s (EPA) legal authority and deny a petition that sought to invalidate EPA’s Cancellation and Existing Stocks Order issued June 8. Congress has provided for the certainty needed by growers in critical times – like planting season right now – by equipping EPA with the “existing stocks” authority it exercised in its June 3 guidance to growers.
Additionally, during its series of late-night orders June 19, the Court granted both CropLife America’s and a Grower coalition’s requests to file an amicus brief. The grower request was filed June 16 by ASA, American Farm Bureau Federation, National Cotton Council of America, National Association of Wheat Growers, National Corn Growers Association, and National Sorghum Producers, and supports EPA’s existing stocks decision. That brief highlighted the devastating consequences that would result if the NGO’s request were granted and growers could not use existing stocks.
EPA’s long-established policy and practice under FIFRA provides for an orderly management of the distribution, sale, and use of existing stocks of a formerly registered pesticide product, including – as in this instance – in the context of vacatur. Immediately banning use of existing stocks of Xtendimax, Engenia, and FeXapan would have financially devastating consequences on America’s soybean growers, who have invested an estimated $3.35 billion for soybean seed in 2020 and hundreds of millions of dollars more in herbicides, labor, fertilizer and other costs, expecting that over-the-top applications of dicamba would remain lawful.
American growers and the public are fortunate that a proper administrative and judicial-review framework exists. Farmers use countless FIFRA-regulated pesticide products, including herbicides, insecticides and fungicides. They make planting decisions and significant, up-front financial investments based on the rules and regulations in place at the time plans are made. Soy farmers are dependent on those rules not changing in the middle of the game and are glad the Court got it right in these orders.