Dicamba

This issue tracker focuses on federal and selected state regulatory actions and litigation addressing the use and labeling of dicamba. Our goal is to provide a comprehensive listing of regulatory actions, but the litigation covered is not exhaustive and focuses on selected issues receiving national attention. This issue tracker covers the period from 2016 to present. 

6.4.24 – The U.S. Environmental Protection Agency (EPA) announced a 30-day public comment period in the Federal Register for a proposed label regarding new uses of BASF Corporation’s Engenia dicamba-based herbicide. Under the proposed label, Engenia could be applied to dicamba-tolerant cotton until July 30. For dicamba-tolerant soybeans, application would be allowed until June 12 or until the soybeans reach the V2 growth stage, whichever comes first. The public comment period will close on July 5, 2024.  

5.3.24 – The U.S. Environmental Protection Agency (EPA) announced a 30-day comment period in the Federal Register for Bayer CropScience LP’s proposed label and endangered species use limitations for a new use of its dicamba-based herbicide on dicamba-tolerant soybean and cotton (EPA-HQ-OPP-2024-0154). The EPA’s proposed label would allow dicamba application on soybeans up to seedling emergence, but only until June 12. For cotton, dicamba application would be allowed throughout the growing season with a cut-off date of July 30. The public comment period ended on June 3, 2024.  

2.14.24 – The U.S. Environmental Protection Agency (EPA) issued an existing stocks order for the dicamba-based herbicides: XtendiMax, Engenia, and Tavium, following a vacatur of the herbicides’ registrations, Center for Biological Diversity, et al. v. U.S. EPA, et al., USDC Arizona, No. 4:20-cv-555. According to the order, (1) effective February 6, 2024, manufacturers are prohibited from selling or distributing these herbicides, except for proper disposal or export; and (2) distributors, retailers, and commercial applicators already in possession of existing stocks on February 6, 2024, can use, sell, or distribute the products until their specific end date. Additionally, the order only allows use of existing stocks according to the original product labels and gradually phases out these herbicides between June 12 and July 30, 2024, depending on the state and the specific crop involved.

2.16.23 – The U.S. Environmental Protection Agency (EPA) announced additional labeling restrictions on over-the-top (OTT) dicamba use in Iowa, Illinois, Indiana and South Dakota. The restrictions prohibit the use of OTT dicamba on dicamba-tolerant crops after June 12 in Iowa, Illinois, and Indiana while in South Dakota the cutoff date is June 20. This supersedes an amendment previously approved for Iowa in March 2022.

8.18.22 – The U.S. Environmental Protection Agency (EPA) published a Draft Ecological Risk Assessment and Human Health Risk Assessment Addendum for dicamba’s 15-year registration review.

• The Draft Ecological Risk Assessment (DRA) found potential risks associated with dicamba exposure to terrestrial plants, aquatic plants, birds, mammals, and honeybees. It also identified non-target plants as being particularly vulnerable to runoff and spray drift. The ERA, however, suggested several measures to help reduce off-site drift, such as using ground applications instead of aerial ones, maintaining lower boom heights, using coarser droplet ranges, implementing in-field spray drift buffers, or using drift reduction technologies.
• The Human Health Risk Assessment (HHRA) concluded there are no significant dietary or residential risks associated with dicamba and stated that “dicamba is not likely carcinogenic to humans.” The HHRA, however, identified certain inhalation risks for occupational handlers, especially for those involved in “mixing and loading dry flowable formulations for aerial applications to high acreage crops” at a rate higher than 1 pound of active ingredient per acre (1.05 ai/A). Although the use of a PF10 respirator and engineering controls such as the use of water-soluble bags could reduce these risks, they may still persist. Additionally, the HHRA recommended that several tolerances should be revised to align with the Organization for Economic Cooperation and Development’s (OECD) rounding class practices and suggested consolidating all crop tolerances into a single tolerance expression.

3.15.22 – The U.S. Environmental Protection Agency (EPA) introduced new restrictions on the use of over-the-top (OTT) dicamba in Minnesota and Iowa. The restrictions prohibit the use of OTT dicamba on dicamba-tolerant crops after June 20 in Iowa while in Minnesota, for land south of Interstate-94, the cutoff date is June 12. The cutoff date remains June 30 in Minnesota for land north of Interstate-94. Additionally, EPA introduced temperature restrictions and prohibits OTT dicamba use if the air temperature at the time of application is above 85 degrees in Iowa and Minnesota, or if the highest temperature forecasted for the nearest available location exceeds 85 degrees in Minnesota.  

12.21.21 – The U.S. Environmental Protection Agency (EPA) published a report, titled “Status of Over-the-Top Dicamba: Summary of 2021 Usage, Incidents and Consequences of Off-Target Movement, and Impacts of Stakeholder-Suggested Mitigations” (docket EPA-HQ-OPP-2020-0492). The report addresses the impacts of the use of over-the-top (OTT) dicamba on non-target crops for the 2021 crop season. EPA declared that “[d]espite the control measures implemented in EPA’s October 2020 dicamba registration decision, the 2021 incident reports show little change in number, severity, or geographic extent of dicamba-related incidents when compared to the report the Agency received before the 2020 control measures were required.” EPA noted that it is reviewing all potential courses of actions, but any modifications are not expected to be fully implemented before the 2022 growing season.

11.10.21 – The U.S. Environmental Protection Agency (EPA) fined Nutrien Ag Solutions, Inc. $668,100 for unlawfully using dicamba-containing products in 2020. EPA found that the company violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and EPA’s dicamba registration cancellation order of June 3, 2020, on 27 occasions by applying the products in a manner that was not consistent with the approved label. Additionally, the company applied the products 33 times in Kansas during periods of high wind speeds, in violation of dicamba label requirements. This is the first known EPA enforcement action related to EPA’s 2020 dicamba registration cancellation order. 

5.24.21 – The U.S. Environmental Protection Agency (EPA) Office of Inspector General (OIG) issued a report assessing EPA’s actions in evaluating stakeholder risks for its 2016 and 2018 dicamba registration approvals. OIG found that EPA’s 2018 actions varied from typical operating procedures, citing EPA’s failure to perform the required internal peer reviews of the supporting scientific documents, and changes to scientific analyses made by political appointees in senior management, which cited “author” as the source of the suggested revisions. The report recounts senior management decisions to: (1) use plant height as the standard measure of dicamba effect on plants instead of the academically accepted use of visual signs of plant injury for direct-spray toxicity studies; and (2) give scientists an outline for rewriting their benefits and impact analysis which omitted their previous relevant analyses of dicamba’s effects. The report concludes that EPA needs to document and follow established procedures to ensure scientifically sound decisions regarding pesticides and provides three recommendations for corrective actions, two of which have been implemented and resolved by the agency.

3.10.21 – The U.S. Environmental Protection Agency’s (EPA) Office of Chemical Safety and Pollution Prevention (OCSPP) Acting Assistant Administrator Michael Freedhoff issued an internal email affirming the agency’s commitment to scientific integrity and enumerating past instances in which “political interference” had “compromised the integrity” of the agency’s science. Specifically, the email noted that in approving three dicamba product registrations in 2018, OCSPP senior leadership directed career staff to rely on a limited data set, discount specific studies (some with more robust data) and discount scientific information on negative impacts. The email acknowledges that these deficiencies contributed to the Ninth Circuit’s invalidation of the 2018 registrations, which “impacted growers’ ability to use [the] product[s].”

10.27.20 – The U.S. Environmental Protection Agency (EPA) announced its decision to approve 5-year registration of three dicamba-containing products for over-the-top (OTT) use on dicamba-tolerant soybean and cotton. The approved products include Bayer’s XtendiMax and BASF’s Engenia, which had their registration previously cancelled in June 2020, and Syngenta’s Tavium, whose registration was set to expire on December 20, 2020, EPA-HQ-OPP-2020-0492. The Memorandum Supporting Decision to Approve Registration for the Uses of Dicamba on Dicamba Tolerant Cotton and Soybean outlines the factors considered and the reasons for the approval by EPA. The newly approved registration for the three products:

• Are for use with “dicamba-tolerant” soybean and cotton only;   
• Apply only in the following 34 states: Alabama, Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Illinois, Iowa, Indiana, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, and Wisconsin;  
• Expire on Dec. 20, 2025;   
• Prohibit soybean application after June 30 annually;  
• Prohibit cotton application after July 30 annually;  
• Require the dicamba products to be tank-mixed with a “pH-buffering agent” and that producers maintain a 240-foot “downwind buffer” and a 310-foot buffer in “listed species” locations;   
• Prohibit application during temperature inversions and at any time other than between one hour after sunrise and two hours before sunset. 

On February 22, 2021, Corteva—formerly DuPont—announced in a news release it stopped producing FeXapan in the United States and Canada. Consequently, FeXapan is not part of the approval decision and remains unapproved for any use at this time.  

6.8.20 – The U.S. Environmental Protection Agency (EPA) issued a Final Cancellation Order, effective retroactively to June 3, 2020, of the 2018 registration for the dicamba-containing products XtendiMax, Engenia, and FeXapan in response to the Ninth Circuit Court’s decision invalidating the 2018 registration as being granted in violation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). EPA ordered that:

• For parties in the distribution chain other than the registrant—existing stock already in possession as of June 3, 2020, may be distributed or sold only for the purpose of proper disposal or return to the registrant (or a registered establishment under contract with the registrant) until July 31, 2020;
• For commercial applicators distribution—existing stock already in possession as of June 3, 2020, may be distributed until July 31, 2020;
• Use by growers or commercial applicators of existing stock already in possession as of June 3, 2020, is permitted, consistent with the previously approved labeling accompanying the product until July 31, 2020.

10.31.18 – The U.S. Environmental Protection Agency (EPA) extended the registration of dicamba-containing products XtendiMax, Engenia, and FeXapan for over-the-top (OTT) use on dicamba-tolerant soybean and cotton for an additional two years. As part of the two-year extension, EPA introduced new labeling requirements and restrictions. EPA Acting Administrator recognized that “dicamba is a valuable pest control tool for America’s farmers” and that “[b]y extending the registration for another two years with important new label updates that place additional restrictions on the product, we are providing certainty to all stakeholders for the upcoming growing season.” Following the EPA action, American farmers may continue to use the dicamba products until December 20, 2020.  

10.13.17 – The U.S. Environmental Protection Agency (EPA) introduced additional label restrictions for over-the-top (OTT) dicamba in response to numerous complaints from farmers and non-farmers about dicamba drift and/or damage. Under the new restrictions (1) only certified applicators are permitted to apply the product; (2) farmers must maintain specific records; (3) application is restricted to wind speeds below 10 mph; (4) application is limited to specific times of the day; (5) the label must include tank clean-out language; and (6) language regarding enhanced susceptible crops and recordkeeping with sensitive crop registries. Additionally, EPA noted that the manufacturers agreed to have the new labeling available for use during the 2018 season. 

2.7.17 – The U.S. Environmental Protection Agency approved a conditional registration of dicamba-containing product FeXapan, designed by DuPont. The registration was set to expire on November 9, 2018.  

12.20.16 – The U.S. Environmental Protection Agency approved a two-year conditional registration of dicamba-containing product Engenia, designed by BASF Corporation. The registration was set to expire on December 20, 2018.

11.9.16 – The U.S. Environmental Protection Agency approved a two-year conditional registration of dicamba–containing product XtendiMax, designed by Monsanto Company, for new uses on dicamba-tolerant cotton and soybean. The registration was set to expire on November 9, 2018.  

The U.S. Environmental Protection Agency (EPA) initially registered dicamba in 1967, which is known to be a highly volatile herbicide that has the potential to harm non-target crops. Monsanto, DuPont, and BASF Corporation developed new dicamba formulations that contained fewer volatile compounds and submitted applications to EPA for new uses on dicamba-tolerant (DT) soybean and cotton crops. Subsequently, In 2016 and 2017, EPA granted conditional registrations of the herbicides: XtendiMax, Engenia, and FeXapan.

Bader Farms, Inc. v. BASF Corporation [Case closed]
USDC E.D. Missouri, No. 1:16-cv-299
Eighth Circuit, No. 20-3663 [Lead case]

This case appears to be the first U.S. jury trial and verdict in a cause of action for property damages to a neighboring landowner caused by drift of the herbicide dicamba. This case is not included in the Dicamba Herbicides Litigation Soybean Producers Master Settlement Agreement. 

11.23.16 – Plaintiffs Bader Farms, Inc. and Bill Bader filed a petition before the Dunklin County Circuit Court, 16DU-CC00111, against Monsanto Company seeking compensation for crop and peach tree damages resulting from dicamba drift.

The case was removed on December 30, 2016 from Dunklin County Circuit Court to the U.S. District Court for the Eastern District of Missouri.

10.20.17 – Plaintiffs filed a second amended complaint against defendants Monsanto Company and BASF Corporation, alleging that both defendants “conspired to their mutual economic benefit to create a market for the components of this dicamba-based system.”

2.14.20 – A jury returned a verdict awarding Plaintiffs $15 million in compensatory damages against Monsanto and BASF Corporation.

2.15.20 – A jury returned a verdict awarding Plaintiffs $250 million in punitive damages against Monsanto and BASF Corporation.

11.25.20 – The U.S. District Court issued a Memorandum Opinion and Order on post-trial motions reducing to $60 million the Feb. 15, 2020 jury award of $250 million in punitive damages against Monsanto and BASF Corporation. The court found that the 17-to-1 ratio of punitive damages to compensatory damages was unconstitutionally excessive and, accordingly, reduced the punitive damages to a 4-to-1 ratio, or $60 million. Additionally, the court denied Monsanto’s and BASF Corporation’s motions for a new trial on multiple other grounds asserted.

12.17.20 – Both Monsanto (No. 20-3665) and BASF Corporation (No. 20-3663) filed motions appealing the court’s judgment to the U.S. Court of Appeals for the Eighth Circuit. 

3.15.21 – Appellant Monsanto filed an opening brief supporting its appeal of the district court’s judgment, calling the $60 million jury verdict “unconstitutionally excessive.” Monsanto asserted that (1) “the district court erred in holding Monsanto responsible for the illegal actions of third parties;” (2) “the district court’s rulings on compensatory damages likewise contradict Missouri law;” and (3) “the punitive damages award violates both Missouri law and the Due Process Clause.”

5.5.21 – Appellee Bader Farms, Inc. filed an answer to Monsanto’s opening brief, refuting Monsanto’s arguments. 

7.7.22 – The Eighth Circuit Court issued an opinion remanding the case to make separate determinations on punitive damages. The jury awarded plaintiff’s $15 million in compensatory damages and $250 million in punitive damages. The Honorable Judge Limbaugh reduced the amount of punitive damages to $60 million. The court found no error in the jury’s finding of liability on the part of both defendants but ordered a new trial to determine punitive damages for each defendant individually. The court noted Bader’s claims that both defendants formed a joint venture fails because BASF did not have an equal amount of control over the enterprise. Since Monsanto and BASF were not involved in a joint venture, they cannot be held jointly and severally liable in the case of punitive damages. The dates for both new trials have not yet been announced.

8.4.22 – Appellant BASF Corporation filed a petition for rehearing by panel.

8.26.22 – The Eighth Circuit Court denied Appellant BASF Corporation’s petition for rehearing.

National Family Farm Coalition v. EPA (NFFC I) [Case closed]
Ninth Circuit, No. 17-70196

1.20.17 – Petitioners National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity and Pesticide Action Network North America filed a petition for review of EPA’s 2016 decision approving the registration of the dicamba-containing product XtendiMax for post-emergent uses on cotton and soybean plants as well as the 2017 registration amendments. The 2016 registration was set to expire on November 9, 2018.

11.2.18 – Respondent-Intervenor Monsanto Company filed a motion to dismiss the case for lack of jurisdiction based on mootness. Monsanto argued that the petition became moot as of October 31, 2018, when EPA issued a new and superseding decision to extend the conditional registration of XtendiMax and noted that federal courts can only rule on live cases and controversies.

1.10.19 – The Ninth Circuit Court issued an order dismissing the petition as moot.

National Family Farm Coalition, et al. v. U.S. EPA, et al. (NFFC II) [Case closed]
Ninth Circuit, No. 19-70115

1.11.19 – Petitioners National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America filed a petition asking the Ninth Circuit Court to review EPA’s October 31, 2018, decision to extend the conditional registration of three dicamba-containing products XtendiMax, Engenia, and FeXapan for new uses on dicamba-tolerant (DT) cotton and soybean.

6.3.20 – The U.S. Court of Appeals for the Ninth Circuit issued a decision that invalidates and vacates EPA’s 2018 registration approval, effective immediately. The court held that this approval violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). As the prior registration for these products expired in December 2018, none of the three products have a valid registration at this time and are therefore prohibited from being used or sold in the U.S. 

7.20.20 – Intervenor-Respondent Monsanto Company filed a petition seeking a rehearing en banc of EPA’s June 3, 2020, cancellation order revoking the conditional registration of the three dicamba-containing products.

7.23.20 – The Ninth Circuit Court issued an order to temporarily recall EPA’s June 3, 2020, cancellation order while it considers the petition for rehearing.

8.17.20 – The Ninth Circuit Court denied Monsanto Company’s petition for a rehearing en banc of the June 3, 2020, decision vacating EPA’s registration of the three dicamba-containing products. Concurrently, the court issued a mandate reinstating the June 3, 2020, cancellation order.

National Family Farm Coalition v. EPA (NFFC III) [Case closed]
Ninth Circuit, No. 20-73750

12.21.20 – The National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America filed a petition for review before the U.S. Court of Appeals for the Ninth Circuit seeking to invalidate EPA’s October 27, 2020, registration approval of three dicamba-containing products, namely Bayer’s XtendiMax, BASF’s Engenia, and Syngenta’s Tavium. Petitioners alleged that the EPA’s registration approval violates the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and other legal grounds. Additionally, petitioners sought to prohibit EPA from reversing its longstanding practice of allowing states to impose local restrictions on pesticide registrations and use under Section 24(c) of FIFRA.

12.24.20 – Petitioners requested that their case be assigned to the same panel that reviewed prior cases NFFC I and NFFC II.

1.26.21 – The Ninth Circuit Court transferred the case to the U.S. Court of Appeals for the District of Columbia, No. 21-1043.

National Family Farm Coalition, et al. v. U.S. EPA, et al. [Case closed]
D.C. Circuit, No. 21-1043

2.2.21 – The D.C.Circuit Court consolidated this case with American Soybean Association v. Michael Regan, et al., No. 20-1441.

2.3.21 – The U.S. Environmental Protection Agency (EPA) filed an unopposed motion to stay the proceedings for a 60 day-period in accordance with President Joe Biden’s Executive Order 13990, titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” issued on January 25, 2021. The Executive Order directed EPA to review all agency actions issued, or adopted, between January 20, 2017, January 20, 2021, which includes the 2020 registration.

2.8.21 – The D.C. Circuit Court granted EPA’s motion to hold the consolidated cases in abeyance pending further order of the court. 

4.22.21 – Petitioners National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network (NFFC Petitioners) motioned the court to transfer the consolidated petitions for review back to the U.S. Court of Appeals for the Ninth Circuit. Petitioners argued that “[t]he dispute before the [c]ourt is the third in a series of litigation. The prior two, involving the same parties, were heard and decided by the Ninth Circuit. The present consolidated cases, including any jurisdictional issues regarding them, should also be decided by that Court.”

4.23.21 – Petitioners American Soybean Association and Plains Cotton Growers (Trade Association Petitioners) filed a motion to govern future proceedings seeking a stay of the case pending resolution of the jurisdiction issue in American Soybean Ass’n v. EPA, et al., No. 1:20-cv-3190.

4.23.21 – Respondent EPA Administrator Michael S. Regan filed a motion to dismiss the consolidated petitions for review for lack of subject matter jurisdiction. Regan claimed that EPA did not provide a public hearing pursuant to FIFRA 7 U.S.C. § 136n(b) prior to issuing approvals of the three dicamba-containing products; consequently, the consolidated petitions can only be reviewed in district courts. 

7.14.21 – The D.C. Circuit Court denied NFFC Petitioners’ motion to transfer the consolidated petitions for review back to the Ninth Circuit Court and Trade Association Petitioners’ motion to stay the case.  

8.6.21 – NFFC Petitioners filed a motion to voluntarily dismiss the petition, preferring to continue litigating this case in the U.S. District Court for the District Court of Arizona, No. 4:20-cv-555.

9.8.21 – The D.C. Circuit Court granted NFFC Petitioners’ motion to dismiss the case and issued mandate.

American Soybean Association v. Michael Regan, et al. [Case closed]
D.C Circuit Court, No. 20-1441 [Lead case]

The D.C. Circuit consolidated the following cases American Soybean Association v. Michael Regan, et al., No. 20-1445; Plains Cotton Growers, Inc. v. Michael Regan, et al., No. 20-1484; American Soybean Association v. Michael Regan, et al., No. 22-1048; American Soybean Association v. Michael Regan, et al., No.  22-1050; and Plains Cotton Growers, Inc. v. Michael Regan, et al., No. 22-1067 with this case.

4.22.21 – Petitioners National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network (NFFC Petitioners) filed a motion to transfer the consolidated petitions for review to the Ninth Circuit Court.

4.23.21 – Petitioners American Soybean Association and Plains Cotton Growers (Trade Association Petitioners) filed a motion to govern future proceedings seeking a stay of the case pending resolution of the jurisdiction issue in American Soybean Ass’n v. EPA, et al., No. 1:20-cv-3190.

4.23.21 – Respondent EPA Administrator Michael S. Regan filed a motion to dismiss the consolidated petitions for review for lack of subject matter jurisdiction. Regan claimed that EPA did not provide a public hearing pursuant to FIFRA 7 U.S.C. § 136n(b) prior to issuing approvals of the three dicamba-containing products; consequently, the consolidated petitions can only be reviewed in district courts.

7.14.21 – The D.C. Circuit Court denied NFFC Petitioners’ motion to transfer the consolidated petitions for review back to the Ninth Circuit Court and Trade Association Petitioners’ motion to stay the case. 

8.6.21 – NFFC Petitioners filed a motion to voluntarily dismiss the petition, preferring to continue litigating this case in the U.S. District Court for the District Court of Arizona, No. 4:20-cv-555.

9.8.21 – The D.C. Circuit Court granted NFFC Petitioners’ motion to dismiss the case and issued mandate.

9.28.22 – Trade Association Petitioners submitted a joint brief seeking to have the 2020 registration approval as well as the 2022 registration amendments remanded back to the EPA. Petitioners asserted that these agency actions are arbitrary, capricious and not based on substantial evidence.

9.28.22 – Respondents submitted their brief arguing that the D.C. Circuit does not have subject-matter jurisdiction to review the 2020 registration and 2022 registration amendments because these actions were not preceded by a public hearing in accordance with 7 U.S.C. § 136n(b). Additionally, respondents claimed that petitioners’ arguments lack merits.

On December 8, 2022, the D.C. Circuit Court heard oral arguments.

7.21.23 – The D.C. Circuit Court issued an opinion, dismissing the petitions for review for lack of jurisdiction. The court clarified that challenges to EPA orders issued without a public hearing are reviewed in district courts, not courts of appeals. Since no public hearing occurred in this case, the court concluded that the appropriate venue for review is the district court.

9.13.23 – The D.C. Circuit Court issued mandate.

American Soybean Association, et al. v. U.S. EPA, et al. [Case open]
USDC District of Columbia, No. 1:20-cv-3190

11.4.20 – Plaintiffs American Soybean Association (ASA) and Plains Cotton Growers, Inc. filed a complaint seeking a declaratory and injunctive relief against the application restrictions imposed in EPA’s new registration approval of three dicamba products through 2025. Specifically, the complaint seeks removal of the nationwide application deadlines of June 30 for soybeans and July 30 for cotton as debilitating to control of certain weeds in certain areas, particularly when replanting occurs comparatively late, coupled with existing herbicide resistance to other products. The lawsuit also alleges that the 310-foot and 240-foot application buffer zones in enumerated listed species areas effectively prohibit farming on hundreds of thousands of tillable acres.

2.5.21 – Federal Defendants filed an unopposed motion to hold the case in abeyance and toll their deadline to respond to the complaint for 60 days, following the issuance of President Joe Biden’s Executive Order 13990, titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” As stated in the motion, this abeyance would “allow time for EPA staff to brief new leadership on the Registrations challenged here and for new EPA leadership to review the Registrations in conformance with Executive Order 13,990.” On the same day, the U.S. District Court granted Federal Defendants’ motion to hold the case in abeyance for a period of 60 days.  

4.6.21 – Federal Defendants filed a motion for partial dismissal of counts II “ESA Buffers” and IV “ESA Determinations” of the complaint for lack of jurisdiction, stating that “inter alia, Plaintiffs have failed to comply with the Endangered Species Act’s (ESA) requisite 60-day notice requirement.”

4.27.21 – Plaintiffs American Soybean Association and Plains Cotton Growers filed an amended complaint against U.S. EPA. 

4.28.21 – The U.S. District Court issued an order declaring moot EPA’s partial motion to dismiss the complaint following the filing of the amended complaint. 

6.1.21 – Federal Defendants filed a motion for partial dismissal of certain claims in the amended complaint that EPA violated Section 7 of the Endangered Species Act (ESA) “by using certain application cutoffs and buffers–the ‘ESA Application Restrictions’ and ‘ESA Buffers’–to make its effects determinations.”

7.23.21 – The U.S. Environmental Protection Agency (EPA) filed a motion to stay the case pending the D.C. Circuit’s resolution of petitions for review of EPA’s registration decisions in American Soybean Association v. Regan, No. 20-1441.

9.3.21 – The U.S. District Court granted EPA’s motion to stay the case pending issuance of the mandate in American Soybean Association v. Regan, No. 20-1441.

3.16.22 – The U.S. Environmental Protection Agency (EPA)  “inform[ed] the Court that EPA has taken regulatory action to approve label amendments requested by the registrants for the pesticide registrations at issue in this litigation.”

5.9.22 – Plaintiffs filed a motion to temporarily lift the stay “for the limited purpose of supplementing their pleadings to include this related regulatory development.”

5.11.22 – The U.S. District Court granted Plaintiffs’ motion to temporarily lift the stay, pointing out that the stay granted in September 2021 remains in place.

2.24.23 – The U.S. Environmental Protection Agency (EPA) notified the court of its approval on February 16, 2023, of recent amendments to the dicamba registration, which require additional limitations on over-the-top (OTT) dicamba usage in Iowa, Illinois, Indiana, and South Dakota.

9.20.23 – In response to the D.C. Circuit Court’s mandate in American Soybean Association v. Regan, No. 20-1441, the defendants sought to extend the stay of this case to address recent developments. These include the EPA’s February 2023 amendments to over-the-top (OTT) dicamba use restrictions and the Center for Biological Diversity v. EPA case, No. 4:20-cv-555.

9.21 23 – The U.S. District Court granted the defendants’ motion to stay.

10.4.23 – The plaintiffs filed a motion to stay. They requested that the court use its discretion to further stay these proceedings until a parallel challenge to the dicamba registrations in Center for Biological Diversity v. EPA case, No. 4:20-cv-555 is resolved.

10.6.23 – In a minute order, the U.S. District Court granted the plaintiffs’ motion to stay pending the outcome of the case Center for Biological Diversity, et al. v. U.S. EPA, et al., No. 4:20-cv-555.

Center for Biological Diversity, et al. v. U.S. EPA, et al. [Case closed]
USDC Arizona, No. 4:20-cv-555

12.23.20 –The Center for Biological Diversity, National Family Farm Coalition, Center for Food Safety, and Pesticide Action Network North America—who were involved in National Family Farm Coalition, et al. v. U.S. EPA, et al.—filed a complaint against EPA, again seeking to overturn the 2020 registration approval on virtually identical grounds as in the previous case. Here, plaintiffs emphasized on EPA’s alleged failure to fully consider the social and economic risks and costs to farmers resulting from the 2020 registration. Additionally, they sought equitable relief urging EPA to institute a rulemaking process to effectively reverse its longstanding policy allowing states to impose local restrictions on pesticide registrations and use under Section 24(c) of FIFRA.

5.3.21 – Plaintiffs filed an amended complaint against EPA adding allegations of harm to endangered species resulting from EPA’s 2020 decision to approve new dicamba registrations and failure to comply with the Endangered Species Act (ESA).

5.21.21 – Defendants filed a motion to change venue and transfer case to the U.S. District Court for the District of Columbia for consolidation with the American Soybean Ass’n v. EPA, No. 1:20-cv-3190. Defendants argued that the D.C. District Court is the “appropriate forum for a nationwide challenge of this type” while the subject matter of this case is similar to the American Soybean Ass’n v. EPA case, which also disputes the same EPA registration decision.

8.6.21 – Plaintiffs filed a motion to determine jurisdiction requesting the U.S. District Court for the District of Arizona to hold jurisdiction and proceed with the merits of this case.

11.15.21 – The U.S. District Court issued an order denying both Defendants’ motion to transfer venue and Plaintiffs’ motion to determine jurisdiction and stayed the case to allow time for resolution of the case pending resolution of the case in the U.S. Court of Appeals for the District of Columbia, No. 20-1441.

1.6.22 – Plaintiffs filed a motion to reinitiate the proceedings and remove the current stay, arguing that EPA’s December 2021 report showed a “drastic change in circumstances” that justifies a removal of the stay. The report acknowledged that the three dicamba-containing products at issue have caused harm to the environment and agriculture, including potential harm to endangered species, which stands in contrast to EPA’s position when the court originally granted the stay.

10.14.22 – The U.S. District Court agreed to lift the stay and resume proceedings and granted plaintiffs’ motion to amend their claims.

10.17.22 – Plaintiffs filed their second amended complaint against all defendants, arguing that EPA’s March 15, 2022, registration amendments do not provide sufficient explanation as to how these additional restrictions in Minnesota and Iowa will prevent further harms. They pointed out that “the Restriction Amendments include use restrictions that EPA had found infeasible or ineffective months before in its December 2021 Report and fail to include any restrictions that may mitigate the social and economic impacts” laid out in the Report. Additionally, plaintiffs noted that EPA “failed to complete consultation necessary to … address harms to species.” Plaintiffs asked the court to immediately cancel the 2020 registration as well as the 2022 registration amendments.

1.31.23 – The U.S. Environmental Protection Agency (EPA) issued a report to update the Court of future regulatory action related to the dicamba-based products that are subject to the litigation. EPA reported it has received proposals from Bayer, Syngenta, and BASF to amend labels regulating the use of their dicamba-based products for the 2023 growing season.  

2.17.23 – The U.S. Environmental Protection Agency (EPA) notified the court of its approval of recent amendments to the dicamba registration, which require additional limitations on over-the-top (OTT) dicamba usage in Iowa, Illinois, Indiana, and South Dakota.

3.15.23 – Plaintiffs filed their third amended complaint against all defendants, which added claims against registration amendments issued on February 16, 2023, similar to those already made against the 2022 registration amendments.

 4.12.23 – Plaintiffs filed a motion for summary judgment requesting the court to vacate the 2020 registration. Plaintiffs stated that EPA’s 2021 Report on Dicamba Incidents “basically admit[s] [EPA’s] mitigation in the 2020 Decision had failed, showing drift harm continuing or worsening and admitting harm to endangered species, and … admitting that even EPA … was not sure the registration complied with [the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)] and the [Endangered Species Act (ESA)].”

5.30.23 – The defendants filed a cross motion for summary judgment arguing against vacating the EPA’s registrations of dicamba products, asserting potential harm to agricultural interests. In the alternative, if the court finds the EPA’s actions flawed, the defendants proposed remanding the case to the EPA without vacating the 2020 registrations. The defendants argued that the EPA can address any concerns by revising labels through regulatory processes.

2.6.24 – The U.S. District Court issued an order granting summary judgment to the plaintiffs and vacating the U.S. EPA’s 2020 registrations of the three dicamba products: XtendiMax, Engenia, and Tavium, and denying the defendant’s cross motion for summary judgment. The court found that the U.S. EPA violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Administrative Procedure Act (APA) when it issued registrations for the products without notice and comment, and instead relied upon previous registrations—which were vacated—to determine that “the [over-the-top] dicamba applications in 2020 did not meet the ‘new use’ definition.” The court stated, “Given the unequivocal revocation and cancellation of the [2018] XtendiMax and Engenia that authorized the ‘new use’ of low-volatility dicamba products for postemergent OTT spraying for DT cotton and soybean crops, the EPA’s determination that the 2020 registrations were not also ‘new use’ registrations is so implausible the Court cannot ascribe it to be a mere different in view. It is not a product of agency expertise.” Additionally, the court vacated the registrations, finding no evidence demonstrating more severe consequences for growers or the environment compared to the vacatur of the 2016 registrations. The court highlighted that growers have access to alternative options, such as OTT 2.4-D system, to control weeds.

Arkansas

5.4.21 – The Arkansas Agriculture Department’s (AAD) State Plant Board adopted an emergency rule for the use of the herbicide dicamba, following the U.S. Environmental Protection Agency’s (EPA) new federal registration label for over-the-top use of dicamba for the 2021 growing season; and thus, reversing the Board’s prior decision in December 2020 to maintain the May 25 dicamba cut-off date.  The EPA label includes a new cut-off date of June 30. 

12.2.20 – The Arkansas Agriculture Department’s (AAD) State Plant Board held its Quarterly Board Meeting and voted to keep the May 25 cut-off date for over-the-top dicamba application on soybeans and cotton.  

12.11.19 – The Arkansas Agriculture Department’s (AAD) State Plant Board voted on the following changes to the current rule on dicamba use: 

• Amend the proposed rule by removing the GPS mapping and online registry requirements for dicamba applications; 
• Permanently allow the use of dicamba for burndown applications from April 16 to May 25; 
• Clarify the definition of egregious violation for violations occurring before March 11, 2019 and for violations occurring on or after March 11, 2019. Violations prior to March 11, 2019 are egregious if significant off-target crop damage is established. Violations after March 11, 2019 are egregious if the product is intentionally used in violation of the federal label or a state law or rule.  

9.17.19 – The Arkansas Agriculture Department’s (AAD) State Plant Board announced it approves a proposed rule for dicamba applications and sent it for approval to Governor Hutchinson. If adopted, the rule would maintain the current cut-off date of May 25 in effect and would include the following provisions: 

• From April 16 to May 25, all applications of in-crop dicamba products must be reported via the Arkansas Department of Agriculture’s online registry within 10 days of the application; 
• From April 16 to May 25, applicators of dicamba products must have a printed GPS map of the application available upon request; 
• The restriction on dicamba use during burndown that was added as an emergency rule prior to the beginning of the 2019 growing season was permanently added.  

3.22.19 – The Arkansas Agriculture Department’s (AAD) State Plant Board announced that it had approved a proposed emergency rule clarifying that only three dicamba products are permitted for burndown applications from April 16 through May 25. The three dicamba products allowed under the proposed emergency rule are XtendiMax, Engenia, and FeXapan. The Board stated that the three products are subject to buffer zone rules established under the state’s dicamba rule, which became effective on March 11, 2019. According to the Board, the purpose of the clarification is to prevent the aerial application of dicamba products without the use of buffer zones. The proposed emergency rule now goes to Arkansas Governor Asa Hutchinson for review.  

2.27.19 – The Arkansas Agriculture Department’s (AAD) State Plant Board announced the filing of the new dicamba in-crop use rule with the Secretary of State’s office and that the rule will become effective on March 11, 2019. The rule provisions apply to all dicamba products, including XtendiMax, Engenia, and FeXapan, and are the following: 

• Restrictions on in-crop applications of dicamba from May 26 to October 31; 
• A half-mile buffer zone required around all non-dicamba crops when dicamba is applied; 
• A one-mile buffer zone for university and USDA research stations, certified organic crops and commercially grown specialty crops between April 16 and May 25; 
• Prohibiting the mixing of dicamba with glyphosate between April 16 and May 25; 
• Requiring applicators to provide proof of training to pesticide dealers prior to purchasing dicamba in-crop products.  

Illinois 

2.22.21 – The Illinois Department of Agriculture (IDOA) promulgated emergency regulations under the Illinois Pesticide Act, establishing local use restrictions for dicamba products under FIFRA Section 24(a), as published in the Illinois Register on Feb. 16, 2021 (45 Ill. Reg. 2071). The emergency rules, effective February 5, 2021, prohibit the application of dicamba on soybeans after June 20 of each year, if the wind is blowing toward any Illinois Nature Preserves Commission site or adjacent residential area, or if the temperature or forecasted temperature at the time of application exceeds 85 degrees Fahrenheit. Additionally, producers must consult with the FieldWatch sensitive crop registry and follow all label and recordkeeping specifications. According to the announcement, these state-level requirements impact the use of XtendiMax, Engenia and Tavium products and are in addition to federal label requirements.  

10.16.19 – The Illinois Department of Agriculture (IDOA) announced further label restrictions for the use of dicamba for the 2020 growing season. The IDOA stated that “[t]he decision to pursue state-specific Special Local Needs (SLN) labels was made in response to the record number of misuse complaints the IDOA received during the past three years.” There are six restrictions as listed on the Department’s website: 

• DO NOT apply this product if the air temperature at the field at the time of application is over 85 degrees Fahrenheit or if the National Weather Service’s forecasted high temperature for the nearest available location for the day of application exceeds 85 degrees Fahrenheit; 
• DO NOT apply this product after June 20, 2020; 
• Before making an application of this product, the applicator must consult the FieldWatch sensitive crop registry (www.fieldwatch.com) and comply with all associated record keeping label requirements;
• DO NOT apply when the wind is blowing toward adjacent/neighboring residential areas; 
• Maintain the label-specified downwind buffer between the last treated row and the nearest downfield edge of any Illinois Nature Preserves Commission site; 
• It is best to apply product when the wind is blowing away from sensitive areas, which include but are not limited to bodies of water and non-residential, uncultivated areas that may harbor sensitive plant species.  

Indiana

3.2.21 – The Indiana Pesticide Review Board (IPRB) voted unanimously to categorize Restricted Use Pesticides (RUPs) containing at least 6.5% dicamba active ingredient as Highly Volatile Herbicide (HVH). Under state law, the sale, distribution or use of HVHs is prohibited without written authorization from the Office of Indiana State Chemist (OISC). In a determination document, the IPRB states that it will advise the OISC to provide written authorization for the application of dicamba HVHs only during the periods up to and including June 20 and after August 31 of each calendar year. 

Minnesota

12.8.20 – The Minnesota Department of Agriculture announced it will follow the U.S. Environmental Protection Agency’s (EPA) label requirements for dicamba for the 2021 growing season, including:

• An application cut-off date of June 30 (unless growth stage cut-off comes first);
• Requiring an approved pH-buffering agent—also known as a volatility reducing agent, be tank-mixed with dicamba products prior to all applications;
• Requiring a downwind buffer of 240 feet and 310 feet in areas where listed endangered species are located;

Arkansas

Bayer CropScience, L.P. v. Arkansas State Plant Board, et al.
Arkansas Supreme Court, CV-21-250

6.7.21 – Appellees/Intervenors Farm Voice, Inc. et al. filed an emergency motion to stay circuit court proceedings, including any ruling on the motion for preliminary injunction and the related June 10 hearing. According to Farm Voice Inc.,  “Bayer’s appeal also involves matters that are necessarily and directly related to the preliminary-injunction hearing and motion;” thus, they asked that the court orders a stay of the proceedings until this appeal is concluded. 

6.10.21 – The Arkansas Supreme Court granted Appellees/Intervenors Farm Voice, Inc.’s emergency motion to stay court proceedings pending appeal.

Arkansas State Plant Board v. Glenn Hooks
Pulaski County Circuit Court, No. 60CV-21-2843
Arkansas Supreme Court, No. CV-21-242

5.6.21 – A group of Arkansas residents filed a complaint for declaratory judgment and permanent injunctive relief against the Arkansas State Plant Board, challenging the Arkansas Emergency Rule adopted in May 2021, which includes a new cut-off date of June 30 for the application of dicamba. Plaintiffs sought to preliminary and permanently enjoined the enforcement of the 2021 rule and a declaration to reinstate the 2018 dicamba rule and related May 25 cut-off date.

5.15.21 – Plaintiffs filed a motion for a temporary restraining order and preliminary injunction to halt the implementation of the 2021 Rule.

5.21.21 – The Pulaski County Circuit Court issued a temporary restraining order and preliminary injunction, finding that “[p]laintiffs face immediate, irreparable harm to the non-dicamba tolerant crops that they produce and to their non-crop plants because the time period for Plaintiffs to decide whether to plant dicamba-tolerant crops in order to limit the risk of dicamba damage is quickly coming to an end and any applications of dicamba after May 25, 2021, increase Plaintiffs’ risks of irreparable harm.” The temporary restraining order was set to expire on May 24, 2021.

5.24.21 – The Pulaski County Circuit Court ordered the extension of the initial temporary restraining order until June 10, 2021. 

5.28.21 – Defendant the Arkansas State Plant Board appealed the Pulaski County Circuit Court’s May 21, 2021 temporary restraining order and subsequent order extending it to June 10, 2021. 

6.2.21 – Appellants the Arkansas State Plant Board filed an emergency motion to stay lower court proceedings, alleging that “[a]ppellees cannot demonstrate that irreparable harm will result in the absence of an injunction or restraining order.”

6.7.21 – The Arkansas Supreme Court granted Appellants’ emergency motion to stay the circuit court’s temporary restraining order.