ASA, Ag Groups Petition for Broader Rehearing on Ninth Circuit Dicamba Case

Aug 06, 2020

Last week, ASA led other farm trade associations in urging the U.S. Court of Appeals for the Ninth Circuit to take a broader look at the dicamba case and supported registrant motions for rehearing the case.

The original decision made by a three-judge panel in June vacated the dicamba registrations, siding with arguments filed by plaintiff NGOs claiming EPA did not follow the law under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The resulting vacatur caused widespread confusion and uncertainty for farmers amid planting season.

While an ASA-led grower coalition filed an amicus brief last month defending EPA’s decision to allow for the continued use of existing stocks of the products, this additional amicus brief–filed once again by ASA, National Cotton Council of America, National Association of Wheat Growers, National Corn Growers Association, National Sorghum Producers and American Farm Bureau Federation—addresses the underlying case. The amicus brief states that the panel failed to properly apply FIFRA’s substantial evidence standard in creating its own risk assessment criteria, which the group believes EPA should have considered. It also argues that the panel’s decision inappropriately vacated product registrations not under consideration in the underlying NGO complaint. The grower brief contends these concerns warrant an en banc, or rehearing, of the dicamba case before a broader 11-judge panel of the Ninth Circuit.

The brief contends the panel opinion “adversely affects the predictability, efficiency, and sustainability of growers’ farming operations and their ability to rely on predictable and science-based regulatory decision-making and governmental oversight”

The groups also call for a full court review to clear up the “misconception and misapplication of FIFRA’s substantial evidence standard,” which conflicts with existing law and jeopardizes the growers’ abilities to rely on “predictable and expertise-driven regulatory decisions.” Read the full brief here.