Legal with Leah

Legal with Leah: Dicamba

Thousands of farmers across Ohio and the country planted soybeans this spring with the intention of using the weed killer dicamba to keep those bean fields clean. Then, a court ruled to vacate three brands of the herbicide’s EPA registration and there were some questions about being able to use dicamba at all in 2020.

For this Legal with Leah, Ohio Farm Bureau Policy Counsel Leah Curtis provides an update and answers to the many questions that have been swirling around dicamba.

Listen to Legal with Leah, a podcast featuring Ohio Farm Bureau’s Policy Counsel Leah Curtis discussing topics impacting farmers and landowners.

Transcript

Ty Higgins [00:00:00] Thousands of farmers across Ohio and the country planted soybeans this spring with the intention of using the weed killer dicamba to keep those bean fields clean. Then a court ruled to vacate three brands of the herbicide’s EPA registration, and there were some questions about being able to use dicamba at all in 2020. For this Legal with Leah, we have an update and answers to many questions you might have about dicamba.

I’m Ty Higgins joined by Leah Curtis, policy counsel for Ohio Farm Bureau. And Leah, we’ll get to the somewhat relieving news from EPA in a bit. But for those that may not be familiar with dicamba, it’s not the first time the product’s been part of a court case.

Leah Curtis [00:00:38] Dicamba has been around for a long time. But in 2016, EPA approved registrations for these three products that you mentioned. And those reformulations were attempts to make dicamba less volatile and to use with new seed technology. After some issues in the 2017 planting year, they re-registered those under what’s called a conditional registration with EPA and added a number of other conditions to the label to direct people how to spray it in the safest way. The groups that are involved with this lawsuit had actually sued over that original registration in 2016. But because that new registration happened in 2018, the court said, hey, your case, you don’t have a case anymore because that label is all gone. So they filed another lawsuit under the 2018 registration and challenged that registration for concerns about adverse effects to the environment.

Ty Higgins [00:01:37] You mentioned this newer court case, including dicamba, a much different result this time around.

Leah Curtis [00:01:42] Yes. So this was what’s called a petition for review. It is a specific mechanism under the Federal Insecticide, Fungicide & Rodenticide Act… FIFRA, as we normally call it, and it allows the circuit courts to review an action by EPA under FIFRA and determine whether they followed the law essentially. And what happened here was the court reviewed the record for this registration, basically looked at what the companies had submitted and what EPA had decided and determined that the EPA actually did not comply with the law when they found that there would be no adverse effect on the environment from these three dicamba products.

Ty Higgins [00:02:28] Since news of the court’s decision to vacate dicamba, there has been a lot of uncertainty about whether farmers will be able to spray their soybeans with the product in 2020. It’s something that’s already been purchased. Farmers paid a premium for the dicamba-tolerant soybeans they planted. So how is EPA handling this situation? And I understand there might be a little bit of a wrinkle with how Ohio is going to handle things.

Leah Curtis [00:02:49] Once the court vacated these registrations, technically these could not be sold because FIFRA says you cannot sell or distribute a pesticide or a fungicide that has not been registered. So what EPA did was under that same law, they’re allowed to issue what’s called an existing stock order. Basically, what is already in existence can be used typically is what that means. So what EPA said was growers and commercial applicators can use any existing stock that they were in possession of on June 3, 2020, and that they could continue to use it up until July 31. And then also that any other sale or distribution has to be for returning the product to the company or for disposal in accordance with the law.

Now, one wrinkle to this is that the state of Ohio, like every other state, essentially has to also register those pesticides under their own laws. Ohio’s registration for these three products actually expires at the end of June. Because it is no longer a valid registered pesticide, there cannot be a renewal of that registration because that is a prerequisite to being registered under Ohio law. So for Ohio farmers, they can use this product, but only up until the end of June. This is similar in a lot of other states. In Indiana, for example, it can only be used up until June 20. A number of other states actually already had restrictions on how late into June these dicamba products could be used. So while EPA did say up until July 31, in Ohio, we can only use it up until June 30.

Ty Higgins [00:04:31] So walk me through a couple of scenarios here. Let’s say a farmer already has the dicamba in the barn in storage, ready to go when they’re getting ready to spray here over the next couple of weeks. And then what about that farmer that maybe has purchased dicamba through a retailer, doesn’t have it in their possession quite yet or maybe hasn’t even paid for it yet. What are the situations there and how will the EPA wording handle those?

Leah Curtis [00:04:56] In the first situation where you’ve already paid for it, you already have it, its in your barn, that is very clearly allowed under the EPA’s order to go ahead and spray. The second one is a little less clear because the wording of the order says that it has to be in the possession of the grower or the commercial applicator on June 3. So there have been some calls for EPA to further clarify, recognizing that this is a normal situation for a lot of people. There also may be situations where people have paid, but it’s not yet in their hands. We want to make sure that is clearly allowed to still be used. And as well as commercial applicators are having the same issues. You know, they may have had it on order, but maybe it isn’t in their warehouse yet. So those are things that we’ve asked EPA to clarify, all those different scenarios. But certainly if you own it, if it is in your barn, it can definitely be used.

Ty Higgins [00:05:53] So, again, EPA’s orders, as you might have read, gives until the end of July. But Ohio is only going to give farmers until the end of June to spray their dicamba soybeans. And you can keep up with the latest news, as always, at ofbf.org. And of course, the Ohio Department of Agriculture’s website has updates as well.