Federal Court Bans Over-The-Top Applications of Dicamba for Dicamba Tolerant Crops; EPA Rules That Existing Stocks Outside of the Control of Pesticide Manufacturers May Be Used

Last week a federal court in Arizona vacated, or legally voided, EPA’s 2020 registrations for over-the-top applications of the new low volatility dicamba formulations to dicamba tolerant crops. This includes three products, all registered for use on dicamba tolerant soybean and cotton. The court determined that EPA violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) when it re-registered the three dicamba products in 2020. The EPA responded late yesterday with an Existing Stocks Order that will allow for the sale, distribution, and use of dicamba over-the-top products that are already in the possession of growers or in channels of trade outside the control of pesticide companies. Aerial use has not been an allowed use for these dicamba formulations to dicamba tolerant crops.

This is not the first time a court has interfered with the registration of the dicamba formulations for use with dicamba tolerant crops. In June of 2020, the U.S. Court of Appeals for the 9th Circuit banned EPA’s original 2018 registration of new dicamba formulations. EPA quickly responded, issuing a cancellation order later that month, but one that allowed growers and commercial applicators to use any dicamba products already in their possession by the end of July. By October, the 9th Circuit’s ban was irrelevant after the EPA approved new 5-year registrations for the dicamba tolerant crop formulations. It is these registrations that are now in jeopardy. 

Again, aerial applications have never been allowed to make dicamba applications to dicamba tolerant crops, so the ban does not directly affect agricultural aviators. However, it will have serious repercussions for growers, who may be forced to find alternative herbicides for the 2024 growing season if EPA fails to successful counter the ban. Many of the alternative herbicides are less effective at controlling the herbicide resistant weeds dicamba was intended to control. This could result in aerial applicators having more work to apply these alternative herbicides due to aerial applications’ ability, more than any other application method, to quickly treat invasive weeds at an early stage when they are most vulnerable and less tolerant of  certain herbicides.