After Federal Dicamba Ruling, Nebraska's Agriculture Department Allows Sales to Continue

June 8, 2020, 4:57 p.m. ·

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(Photo by Joyce Russell, Harvest Public Media)

The U.S. Court of Appeals for the Ninth Circuit in California recently ruled three popular dicamba herbicidesXtendiMax, Engenia and FeXapanare no longer federally registered.


The decision states the chemicals violate the the Federal Insecticide, Fungicide and Rodenticide Act, or FIFRA, and prompted criticism from farm groups and confusion among state agricultural departments.

Kelly Brunkhorst, who heads the Nebraska Corn Board, was surprised to see the ruling announcement in the middle of the spraying season. He says many farmers have already spent thousands on the herbicides and seeds that complement them.

“I think what drew us probably for the biggest loop is the timing of it," he explained. "We had growers that had made the investment not only in the technology in the seeds and the chemicals, but also made the investment in regards to planting.”

Plus, Brunkhorst says, the news comes amid larger uncertainties and turmoil in agricultural markets. Corn and ethanol demand have significantly declined due to the COVID-19 pandemic, and high hopes for the implementation of a phase one trade deal with China are faltering amid the crisis.

Now, many farmers are unsure what their profits will look like this year. “It just throws another curveball at them, when we didn't need another curveball,” he said.

It's also unclear whether some states can defy the ruling: the EPA has not yet issued guidance as to whether states should bar sales and usage of the chemicals. Steve Wellman, Director of Nebraska's Department of Agriculture says XtendiMax, Engenia and FeXapan are still registered in the Nebraska until the end of this year. He has reached out to the EPA for clarification but has not yet heard back.

“The Nebraska Department of Agriculture has not issued a stop sale order and will enforce the sales and applications of these products as they are currently registered in Nebraska,” Wellman said in a statement.

Several other states are also allowing the herbicides to be sold, including Texas, Iowa, and Missouri, while South Dakota and Illinois have banned them going forward.


The National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America, who spearheaded the 2017 lawsuit that led to the ruling, issued a statement Monday criticizing the EPA's lack of a clear-cut mandate following the decision.

"The ruling was crystal clear: These pesticides can no longer be legally sold or sprayed on dicamba-resistant soybeans or cotton," the plaintiffs wrote.

"State officials have called on EPA for clarification of the Court's ruling, some maintaining their states will allow continued use of dicamba unless or until directed otherwise...but the EPA has ignored their calls, just as it ignored the growers harmed by dicamba."

EPA officials say they're "assessing all avenues to mitigate the impact of the Court’s decision on farmers."