ARA: Ninth Circuit Decision Sets Precedent Dangerous for Agriculture

This was written by Daren Coppock, CEO and President of the Agricultural Retailers Association

Almost two weeks ago, the Ninth Circuit Court of Appeals handed down a decision that vacated the registrations for three dicamba-based herbicides labeled for over-the-top (OTT) application to soybeans and cotton. The precedent set by the Court’s decision is troubling on a number of levels, as is the Court’s reliance on the positions of activist organizations who do not represent anywhere close to the majority of agricultural producers.

The Environmental Protection Agency (EPA) is the regulatory agency charged with registering and regulating these products. Since the original passage of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the authorizing statute, EPA has designed a comprehensive review process to analyze these products. Courts typically offer deference to the expertise of a regulatory agency because the Court lacks the technical expertise to conduct these reviews. Yet in this case, at the prodding of activist organizations who are serial litigators against modern agricultural technology before this Court, the Ninth Circuit saw fit to substitute its judgement for that of the EPA.

Only one state within the jurisdiction of the Ninth Circuit had these products labeled for OTT use: Arizona. The states most impacted by the ruling are in the Great Plains, Corn Belt and the Southeast – completely outside of the Court’s geographic region. Yet this panel of judges concluded that they know better than the courts which actually have jurisdiction in the major use states and invalidated the registrations for everyone.

Oral arguments in this case were heard in August of 2018; yet the Ninth Circuit waited until June 2020 – right in the middle of the application season – to hand down its decision.  Manufacturers had scheduled production to meet demand, retailers had stocked their inventory, growers had invested in dicamba-tolerant seed and herbicide all in preparation for the 2020 crop season. The agricultural supply chain can adapt to registration changes that happen with sufficient lead time, but this decision was handed down at the worst possible and most disruptive time of the year, damaging not just the registrants, but also the distributors, retailers and farmers who had banked on the availability of this system. One wonders if the timing was deliberate.

Who are the plaintiffs that keep bringing these cases? The “National Family Farm Coalition” (NFFC) draws its funding from numerous foundations and environmental activist organizations. It certainly does not represent the majority of farmers in general nor the majority of producers of cotton and soybeans. The Coalition was joined by fellow anti-production agriculture serial litigators including the Center for Food Safety, the Center for Biological Diversity and Pesticide Action Network North America (PANNA). Like NFFC, their funding comes not from farmers but from environmental foundations that fund a lot of similar litigation. These organizations effectively use nonscientific scaremongering on modern agricultural technologies to raise funds from their funding organizations and sympathetic individuals.

The Ninth Circuit has long been known to be sympathetic to extreme environmental positions, but the nature of this decision is a new threshold of judicial activism.

If this precedent is allowed to stand and become a common procedure, courts rather than EPA will take over the role of regulating pesticide registrations. Activists will be able to deprive agricultural producers of new products that have passed regulatory muster with EPA simply by filing suit on nonscientific grounds in the Ninth Circuit. That result would be a tragedy for science-based regulation, for farmers, and for the ultimate customer of our agricultural supply chain: American consumers.
 

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