EPA defended its decision to allow farmers to continue to use three vacated dicamba herbicides — XtendiMax, FeXapan and Engenia — and asked the Ninth Circuit Court of Appeals to throw out a motion filed to hold the federal agency in contempt.
That emergency motion was filed [the week of June 8] by a group of farm and environmental organizations that had successfully brought a lawsuit against EPA, which resulted in a panel of judges on the Ninth Circuit vacating the three registrations on June 3.
On June 8, EPA issued an order canceling the registrations but allowing farmers and commercial applicators to continue to use “existing stocks” of the herbicides in their possession as of June 3. That use was permitted through July 31, although state labels and restrictions still apply.
On June 11, the plaintiffs in the lawsuit asked the Ninth Circuit to order an immediate halt to that use and hold the EPA in contempt, based on their argument that continued use violated the court’s order to vacate the registrations.
In a response filed late on June 16, the EPA argued that vacating the registrations does not technically affect the use of the now-unregistered herbicides.
“… Rescission of a pesticide registration (either by judicial or administrative action) only makes it illegal to distribute or sell that pesticide,” the agency’s response said. “It does not outlaw use of products already legally purchased.”