EPA allows farmers to use existing supplies of dicamba weedkillers despite court ruling

Wisconsin soybean growers were granted a reprieve this week as the U.S. Environmental Protection Agency ordered that farmers can use some existing supplies of weedkillers based on the chemical dicamba, despite a federal court ruling on Feb. 6, 2024 that made use of the products unlawful. Colleen Kottke/Wisconsin State Farmer.

Farmers worried over an Arizona judge’s Feb. 6 ruling outlawing the use of three controversial herbicides for over-the-top applications on soybean and cotton crops received a sweet reprieve on Valentine’s Day after the Environmental Protection Agency stepped in to issue an “existing stocks” order.

The EPA’s Feb. 14 order allows the sale and use of existing stocks of dicamba products XtendiMax, Engenia, and Tavium that were packaged, labeled, and released for shipment prior to the federal court decision earlier this month. For Wisconsin, the EPA’s order allows the sale and distribution of existing stocks of the three herbicides for use on dicamba-tolerant soybeans until May 31, 2024, and the use of existing stocks until June 30, 2024.

In his decision, Judge David Bury of the U.S. District Court of Arizona in Tucson, wrote that the EPA violated the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) with it re-authorized dicamba in 2020, and “sidestepped” legal requirements mandating public input — a “very serious” procedural error.

Both farmers and seed, fertilizer and chemical dealers wondered whether the EPA would step in and use its authority to allow producers and retailers to use “existing stocks” of dicamba products they had already purchased.

“The last time this happened, the EPA allowed growers who had already purchased these chemicals and seeds to use them,” said Alex Renk, co-owner of Renk Seed Co. of Sun Prairie. “The EPA has been a positive force in allowing these products to be on the market.”

Farmers across the U.S. petition EPA for help

FIFRA gives the EPA authority to issue existing stocks orders for products that are canceled. In its decision, the EPA cited missives from the American Farm Bureau Federation, National Cotton Association, Agricultural Retailers Association and American Soybean Association which was part of a group of 26 soy state affiliates asking the agency to intervene.

“The court’s decision on dicamba instantly left tens of millions of acres of U.S. farmland in limbo — and in limbo a matter of weeks before spring planting,” said Josh Gackle, ASA president and a soybean farmer from North Dakota. “This ruling potentially affects more than 50 million acres of dicamba-tolerant soybeans and cotton — an area larger than the state of Nebraska.”

The EPA stated that without its intervention, distributors of the products would be prevented from even returning previously purchased products to manufacturers for relabeling or shipment by any actor to disposal or export facilities. It also noted that growers who had already purchased dicamba-resistant seed are reliant on the availability of dicamba for over-the-top use.