Governor Signs Ohio Coronavirus Immunity Bill

By: Peggy Kirk Hall, Wednesday, September 16th, 2020

It took five months of negotiation, but the Ohio General Assembly has enacted a controversial bill that grants immunity from civil liability for coronavirus injuries, deaths, or losses. Governor DeWine signed House Bill 606 on September 14, stating that it strikes a balance between reopening the economy and keeping Ohioans safe.  The bill will be effective in 90 days.

The bill’s statement of findings and declaration of intent illustrate why it faced disagreement within the General Assembly.  After stating its findings that business owners are unsure of the tort liability they may face when reopening after COVID-19, that businesses need certainty because recommendations on how to avoid COVID-19 change frequently, that individuals who decide to go out in public places should bear responsibility for taking steps to avoid exposure to COVID-19, that nothing in existing Ohio law established duties on business and premise owners to prevent exposure to airborne germs and viruses, and that the legislature has not delegated authority to Ohio’s Executive Branch to create new legal duties for business and premises owners, the General Assembly made a clear declaration of intent in the bill:  “Orders and recommendations from the Executive Branch, from counties and local municipalities, from boards of health and other agencies, and from any federal government agency do not create any new legal duties for purposes of tort liability” and “are presumed to be irrelevant to the issue of the existence of a duty or breach of a duty….and inadmissible at trial to establish proof of a duty or breach of a duty in tort actions.”

The bill’s sponsor, Rep. Diane Grendell (R-Chesterland), refers to it as the “Good Samaritan Expansion Bill.”  That name relates to one of the two types of immunity in the bill, a temporary qualified immunity for coronavirus-based claims against health care providers.  In its original version of H.B. 606, the House of Representatives included only the health care immunity provisions.  Of interest to farms and other businesses are the bill’s general immunity provisions, however, added to the final legislation by the Senate.

General immunity from coronavirus claims

The new law will prohibit a person from bringing a civil action that seeks damages for injury, death or loss to a person or property allegedly caused by exposure to or transmission of coronavirus, with one exception.  The civil immunity does not apply if the exposure to or transmission of coronavirus resulted from a defendant’s “reckless conduct,” “intentional misconduct,” or “willful or wanton misconduct.”  “Reckless conduct” means disregarding a substantial and unjustifiable risk that conduct or circumstances are likely to cause exposure to or transmission of coronavirus and having “heedless indifference” to the consequences.

Government guidelines don’t create legal duties

Consistent with the bill’s stated intent, the new law clarifies that a claimant cannot assert liability based on a failure to follow government guidelines for coronavirus.  The law states that any government order, recommendation or guideline for coronavirus does not create a duty of care that can be enforced through a civil cause of action.  A person may not admit such orders and guidelines as evidence of a legal right, duty of care or new legal cause of action.

No class actions

Another provision in the new law also prohibits a class action that alleges liability for coronavirus exposure or transmission if the law’s general immunity provisions do not apply.

Time period covered

The general immunity provisions apply only to a specified period of time:  from March 9, 2020, when the Governor declared a state of emergency due to COVID-19, until September 30, 2021.

Workers compensation not addressed

An earlier version of the bill passed by the House of Representatives would have classified coronavirus as an “occupational disease” and would have allowed food workers, first responders and corrections officers to receive workers’ compensation benefits for the disease.  However, the Senate removed the workers’ compensation provisions from the final bill based on its belief that the Bureau of Workers’ Compensation is already covering 85% of such claims.

What does H.B. 606 mean for agricultural businesses?

The new law provides certainty that agricultural businesses won’t be assailed by lawsuits seeking damages for COVID-19.  A person claiming harm from exposure to COVID-19 at an agricultural business will only be successful upon a showing that the business acted recklessly and with intentional disregard or indifference to the possibility of COVID-19.  That’s a high evidentiary standard and burden of proof for a claimant.

As is often the case when an immunity bill is enacted, however, there are several reasons why businesses should not let down their guards because of the new law.   Note that while the law rejects government guidelines and orders about COVID-19 as a basis for placing legal duties upon businesses, following such guidelines and recommendations can counter an allegation of reckless or indifferent behavior about COVID-19 exposure or transmission.  And there can be consequences from COVID-19 other than litigation, such as impacts on customer and employee health and safety, workers’ compensation claims, and negative publicity from an alleged COVID-19 outbreak.  Continuing to take reasonable actions to manage COVID-19 and documenting actions taken can enhance the certainty offered by Ohio’s new COVID-19 immunity law.

Read H.B. 606 here.

First Aid at Agritourism Venues during COVID-19 Pandemic

by: Dee Jepsen, PhD, Associate Professor and State Safety Program Leader, Agricultural Safety & Health

Lisa Pfeifer, Educational Program Manager, Agricultural Safety & Health

When agritourism operations are open for business during the COVID-19 pandemic, it is important to consider how first aid treatment will be impacted. No matter their size, medical emergencies require prompt attention. Having trained employees ready to handle the situation, shows responsibility and compassion of the agritourism venue.

First Aid Kits

Every agritourism operation should have a first aid kit available for employees (and possibly the public) to access. Kits are available in different sizes. Permanent kits can be mounted in a central location; portable kits are good to have in farm vehicles and also readily available to take to remote areas away from the main building. Items in the kit can be personalized to your operation and include:

  • Antiseptic wipes
  • Gauze pads & various sized bandages
  • Antibiotic cream
  • Burn cream
  • Insect sting relief
  • Sunscreen
  • Eyewash kit
  • Ibuprofen/Aspirin tablets

Extra precautions must be taken to prevent the spread of COVID-19. Additional items for first aid kits for this season are:

  • Hand sanitizer or foaming hand wash sanitizers
  • Sanitizing wipes
  • Nitrile disposable gloves
  • Disposable face mask
  • CPR face shield

 First Aid Treatments

When providing first aid care, human nature will be to act urgently. However, continue to follow COVID-19 precautions while offering personalized attention.

  • Have the sick or injured person and the caregiver team wear face coverings.
  • Limit bystanders and non-essential responders to six feet distancing. Also, limit the number of persons in direct contact with the sick or injured person.
  • Wash hands before and after treatment.
  • Wear disposable gloves during any contact or treatment. Properly remove and dispose of the gloves.
  • Aftercare has occurred, clean and sanitize the area, and any items that have touched the patient.

Performing CPR

Cardiac emergencies can occur at any time. Being trained in CPR is a valuable skill to help adults, children, and infants during breathing emergencies. Due to the remote locations of agritourism operations, it is advised to immediately call 9-1-1 to start emergency vehicles en route.

  • CPR can be started at any time by trained individuals. Untrained individuals, or those uncomfortable performing CPR on the victim, can start Hands-Only CPR (continuous chest compressions without any mouth to mouth contact). Wear protective gloves.
  • Use a breathing barrier for administering mouth-to-mouth resuscitation. The risk of disease transmission is low when using a CPR face shield.

OSU Extension Bulletin Forthcoming

OSU Extension has prepared a guidance bulletin to help farms develop their plans. The guide is based on publications from the state of Ohio, the CDC, and others. The guide is in the final stage of the approval process and will be available in the coming days. This guide can be used to develop opening plans or update existing plans for agritourism operations.

The guidance bulletin will be posted here on the Ohio Ag Manager website. To watch for updates on the guide, we encourage farms to subscribe to our Ohio Ag Manager Blog at http://ohioagmanager.osu.edu/

Keeping Agritourism Employees Healthy this Season

by: Dee Jepsen, Lisa Pfeifer, Eric Barrett, Rob Leeds, Peggy Hall & Brad Bergefurd 

Agritourism operations need to go above and beyond to plan for safe operations of their farms during the COVID-19 pandemic. The public is looking forward to participating in traditional autumn activities, especially when they know health practices are being followed by the venue.

Employees are a critical piece to any business. When key employees are ‘out sick’, the agritourism activities may be affected or not offered at all. Employers will want to safeguard their small staff during the pandemic to ensure they are providing the necessary protection for their staff, as well as their agritourism guests.

Worker safety starts with good workplace practices.

Start with the basics. All staff should practice the CDC guidelines of washing hands, wearing masks, keeping six feet physical distance, and staying home when sick. Additional precautions include:

  • Provide alcohol-based hand sanitizer for remote locations.
  • Discourage workers from using other workers’ phones, desks, offices, or other work tools and equipment, when possible.
  • Use disposable paper towels. There should be no shared towels, including shop rags.
  • Discourage the sharing of any food or beverages.
  • Establish protocols for sanitizing common gathering places like the shop, lunch areas, and office spaces. Cleaning and disinfecting high touch areas, like door handles, phones, 2-way radios, keyboards, light switches, monitors/touchpads, faucets/sinks, and restroom areas.
  • Avoid ride-sharing in company vehicles, when possible.

Schedule employees to work in teams.

Employers should look at the functions of the total operation. Creating workforce teams or ‘pods’ can help ensure an operation minimizes the impacts should a worker become ill or test positive for the coronavirus. Try to schedule these employees to work together without co-mingling the pods. This will reduce the risk of quarantining the entire workforce, in the event, someone within a pod becomes ill or tests positive for the coronavirus.

Levels of risk will differ with different job descriptions. By thinking in advance, it will be possible to make appropriate plans for employee work shifts and have protective mechanisms in place for high exposure areas.

  • Group employees according to their contact with the general public, on-site service providers, or other co-workers. Manage employee schedules without overlapping work crews who work in the different areas of the operation. For example, keep the pick-your-own field staff in separate teams from the employees who handle checkout and re-stocking at the store.
  • You may also consider grouping employees based on their demographics or their personal environments. Do some of your employees face high exposure risks at home because of a spouse’s work setting? Is it possible to group younger workforces together to minimize exposure to senior workers or workers who are caregivers to elderly or susceptible family members?

Establish an employee health reporting system

Create a plan for how daily health checks and reporting illness will be handled. Discuss these procedures with employees. Workers that are experiencing COVID symptoms may be contagious. Follow your local health department requirements by asking sick employees to stay home or self-quarantine from the rest of the farm workforce.

  • Create a health screening assessment questionnaire and have employees take their temperature before reporting to work. Ask employees to stay home if they have any symptoms or temperatures over 100.4⁰F.
  • Encourage employees to reduce out-of-state travel, participation in mass-group events (weddings, funerals, graduations, etc.), and practice recommendations from the state for social distancing in their off-work environments.
  • Send sick employees to get tested as soon as possible to minimize the ‘wait period’ for test results. Treat employees who are feeling sick or waiting for test results the same, and assume they are positive for coronavirus.

 Prepare a business continuity plan.

Have a plan in place to accommodate a reduction in the workforce. If employees are not available to work, identify which activities will be closed or managed differently. When management is not available to work, have a contingency plan for keeping the operation open.

  • Are employees cross-trained to do handle additional tasks?
  • Are keys available to barns and gates and equipment?
  • Do employees have access to all needed information, like passwords to important accounts?

OSU Extension Bulletin Forthcoming

OSU Extension has prepared a guidance bulletin to help farms develop their plans. The guide is based on publications from the state of Ohio, the CDC, and others. The guide is in the final stage of the approval process and will be available in the coming days. This guide can be used to develop opening plans or update existing plans for agritourism operations.

The guidance bulletin will be posted here on the Ohio Ag Manager website. To watch for updates on the guide, we encourage farms to subscribe to our Ohio Ag Manager Blog at http://ohioagmanager.osu.edu/

Planning to Open Agritourism for Fall and Christmas Seasons

by: Eric Barrett, Rob Leeds, Peggy Hall, Dee Jepsen, Lisa Pfeifer & Brad Bergefurd

In big or small ways, COVID-19 has impacted aspects of farming and agribusiness. Safety, health, and wellness have become necessary concerns for all farm operations. Inviting the public to an agricultural operation for activities requires farm businesses to take additional safety measures for employees and customers. Agritourism is unique in that the activities offered by farms are enjoyed by the greater community in a managed, mostly outdoor environment.

Beyond agriculture, the pandemic has been especially difficult for businesses that focus on entertainment and related activities where large groups of people congregate. To the public, agritourism may seem similar to fairs and festivals. But agritourism is quite different. Agritourism farms are operated over a series of weeks and even months. Many have been operating pick-your-own activities and farm market/produce stands throughout the pandemic. Agritourism farms engage in emergency planning (i.e. – u.osu.edu/agritourismready). These farms are well staffed and have adopted effective tools over the years to manage all types of customer situations. Their livelihood depends on their ability to manage crowds and keep customers safe.

Agritourism operations need to go above and beyond to plan for safe operations of their farms during the pandemic. This is not only important for public safety; it is important for the future of the farm business. Additionally, customers may see well-planned safety measures as a reason to visit the farm during these challenging times.

As operations begin putting together COVID-19 safety plans for their fall and Christmas seasons it is important that the farm communicates and develops a working relationship with the local health department. The local health department is the entity that is charged with protecting the health of the community and ensuring that the standards outlined in the Responsible RestartOhio orders are met. When making the first call to the local health department, farms should have an outline prepared for the preliminary discussion. For Example, be able to explain What activities will happen, and the plan for disinfecting high touch areas of the farm. Some preliminary guidance is available that relates to agritourism farms. This includes:

Consumer, Retail, Services and Entertainment

https://coronavirus.ohio.gov/static/responsible/Consumer-Retail-Services.pdf

Restaurants, Bars, and Banquet & Catering Facilities/Services

https://coronavirus.ohio.gov/static/responsible/Restaurants-and-Bars.pdf

Ohio K-12 Schools (As it relates to operating school tours)

https://coronavirus.ohio.gov/static/responsible/schools/K-12-Schools-Guidance.pdf

Child Care (As it relates to operating school tours)

https://coronavirus.ohio.gov/static/responsible/Sector-fact-sheet-8-Child-Care.pdf

Local departments may also have additional resources and insights that will help put together a plan to allow farms to keep their guests safe and address situations that may arise during the season. The earlier you can meet with them the more help they can provide. Help them get familiar with your operation and how its operated. Talk to them about keeping your guests safe while sustaining the farm. This year our guests will be looking for fun and safe activities, working with our local partners will be one way we can show our commitment to safety.

OSU Extension Bulletin Forthcoming

OSU Extension has prepared a guidance bulletin to help farms develop their plans. The guide is based on publications from the state of Ohio, the CDC and others. The guide is in the final stage of the approval process and will be available in the coming days. This guide can be used to develop opening plans or update existing plans for agritourism operations.

The guidance bulletin will be posted here on the Ohio Ag Manager website. To watch for updates on the guide, we encourage farms to subscribe to our Ohio Ag Manager Blog at http://ohioagmanager.osu.edu/

 

 

 

Facing Farm Financial Stress: Assessing the Bankruptcy Option

Captureby: Peggy Hall, OSU Extension

Farming has always been an unpredictable way to make a living, and that unpredictability can lead to financial stress.  Whether caused by down markets, weather impacts, rising input costs, high land values, poor decision making,  medical issues or a host of other unforeseen circumstances, serious financial stress can be a reality a farmer must face.

Filing bankruptcy can be one way to address farm financial stress.  But because of its consequences, bankruptcy is not a decision to take lightly and might not be the best option.  Our newest resources target farmers who are dealing with financial challenges and considering bankruptcy.   Facing Farm Financial Stress:  An Overview of the Bankruptcy Option offers a seven part series of law bulletins and infographics focused on bankruptcy issues for farmers.  The series covers:

  • Assessing the bankruptcy option.  Steps to take and considerations to make when dealing with financial stress, including alternatives to bankruptcy and farmer to farmer advice from families that have been through the bankruptcy process.
  • An overview of bankruptcy law.  We explain and visualize the legal process, people, institutions and legal terms involved in bankrptcy with a focus on Chapter 12, the law reserved for qualifying farmers and fishermen.
  • Thriving after a farm bankruptcy.  Ideas for setting a course to attain farm financial stability and reestablish relationships after filing bankruptcy, including farmer to farmer advice from those who’ve survived bankruptcy.

Our team of authors, which included myself along with OSU’s David Marrison, Hannah Scott and Chris Zoller–created the resources with support from the USDA’s National Agriculture Library and in partnership with the National Agricultural Law Center (NALC).  The series is available on our Farm Office site here or on NALC’s site here.

OSU Income Tax Schools Summer Update Federal Income Tax & Financial Update Webinar

by: Barry Ward, Director, OSU income Tax Schools

 Significant tax related changes as a result of the new legislation passed in response COVID-19 have created some questions and perhaps consternation over the past few months as taxpayers and tax professionals wrestle with how these many changes may affect tax returns this year and beyond. OSU Income Tax Schools is offering a Summer Update to address these issues and other important information for tax professionals and taxpayers.

The OSU Income Tax Schools Summer Update: Federal Income Tax & Financial Update Webinar is scheduled for August 13th and will be presented as a webinar using the Zoom platform.

John Lawrence, CPA, will teach the course that offers continuing education credits for tax professionals and attorneys. Mr. Lawrence has taught at OSU Extension tax schools for over 20 years and developed this curriculum. He retired from the IRS in 2006 and has since run his own firm in Lawrence, Indiana and Wooster, Ohio.

Webinar Content:

New tax provisions implemented by the CARES Act and Families First Coronavirus Response Act and how to account for them such as the new net operating loss rules, the payroll tax credit, etc. Paycheck Protection Program Loan Issues: loan applications, forgiveness issues and the IRS ruling on loan expenditures that are forgiven under PPP are not tax deductible and how to account for them in preparing a return, etc.

Dealing with the IRS in these difficult times.  Also, what it means to the practitioner as to “dos” and don’ts” regarding the announcement that beginning this summer the IRS will allow the electronic filing of amended returns.

The “Hot IRS Audit Issues – Pitfalls for S Corporations and Partnerships”.  Basis of entities as to the rules and related rulings, how to track basis in these entities, creation of basis where none had been computed in prior tax years, losses in excess of basis and when they are not allowed, definition of an excess distribution, taxation of excess distributions, distribution of appreciated property,  conversion of C corporations to S corporations – do and don’ts, computation of the Built-In Gains Tax, inference and imputation of a reasonable wage for purposes of the computation of the qualified business income deduction, etc.

Other rulings, developments, and cases.

Webinar personnel:

John Lawrence, CPA, John M. Lawrence & Associates: Instructor

Barry Ward, Director, OSU Income Tax Schools: Co-Host & Question Wrangler

Julie Strawser, Program Assistant, OSU Income Tax Schools: Co-Host and Webinar Manager

Details:

OSU Income Tax Schools Summer Update

Federal Income Tax & Financial Update Webinar

(Zoom Webinar)

August 13th, 2020: 10am – 3:30 (Lunch Break: Noon – 12:50pm)

Cost: $150

Registration information and link to the registration page can be found at:

https://farmoffice.osu.edu/osu-income-tax-schools

This workshop is designed to be interactive with questions from the audience encouraged.

Continuing education offered:

Accountancy Board of Ohio (5 hours)

IRS Office of Professional Responsibility (5 hours)

Continuing Legal Education, Ohio Supreme Court (4.5 hours)

 

Ohio Department of Agriculture: dicamba use in Ohio ends June 30, 2020

by: Peggy Hall, OSU Extennsion

Source: https://ohioaglaw.wordpress.com/2020/06/11/ohio-department-of-agriculture-dicamba-use-in-ohio-ends-june-30-2020/

The dicamba roller coaster ride continues today, with a statement issued by the Ohio Department of Agriculture clarifying that the use of XtendiMax, Engenia, and FeXapan dicamba-based products in Ohio will end as of June 30, 2020.  Even though the US EPA has issued an order allowing continued use of the products until July 31, 2020, use in Ohio must end on June 30 because the Ohio registrations for the three dicamba-based products expire on that day.

As we’ve explained in our previous blog posts here and here, the Ninth Circuit Court of Appeals vacated the registration of the dicamba products on June 3, 2020.  In doing so, the court stated that the EPA had failed to perform a proper analysis of the risks and resulting costs of the products.  According to the court, EPA had substantially understated the amount of acreage damaged by dicamba and the extent of such damage, as well as complaints made to state agriculture departments.  The court determined that EPA had also entirely failed to acknowledge other risks, such as the risk of noncompliance with complex label restrictions, economic risks from anti-competition impacts created by the products, and the social costs to farm communities caused by dicamba versus non-dicamba users.  Rather than allowing the EPA to reconsider the registrations, the court vacated the product registrations altogether.

The EPA issued a Cancellation Order for the three products on June 8, stating that distribution or sale by the registrants is prohibited as of June 3, 2020.  But the agency also decided to examine the issue on the minds of many farmers:  what to do with the products.  Applying its “existing stocks” policy, the EPA examined six factors to help it determine how to deal with stocks of the product that are in the hands of dealers, commercial applicators, and farmers.  The EPA concluded that those factors weighed heavily in favor of allowing the end users to use the products in their possession, but that use must occur no later than July 31, 2020 and that any use inconsistent with the previous label restrictions is prohibited.

Despite the EPA’s Cancellation Order, however, the Ohio Department of Agriculture is the final arbiter of the registration and use of pesticides and herbicides within Ohio.  ODA patiently waited for the EPA to act on the Ninth Circuit’s ruling before issuing its guidance for Ohio users of the dicamba products.  In its guidance released today, ODA stated that:

After careful evaluation of the court’s ruling, US EPA’s Final Cancellation Order, and the Ohio Revised Code and Administrative Code, as of July 1, 2020, these products will no longer be registered or available for use in Ohio unless otherwise ordered by the courts.

While use of already purchased product is permitted in Ohio until June 30, further distribution or sale of the products is illegal, except for ensuring proper disposal or return to the registrant.

Application of existing stocks inconsistent with the previously approved labeling accompanying the product is prohibited.

But the roller coaster ride doesn’t necessarily end there.  Several dangling issues for dicamba-based product use remain:

We’re still waiting to see whether the plaintiffs who challenged the registrations (the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America) will also challenge the EPA’s Cancellation Order and its decision to allow continued use of the products, and will request immediate discontinuance of such uses.

Bayer Crop Science, as an intervenor in the Ninth Circuit case, could still appeal the Ninth Circuit’s decision, as could the EPA.

All of these orders add complexity to the issue of liability for dicamba damage.  That issue has already become quite controversial, often pitting farmer against farmer and requiring the applicator or damaged party to prove adherence to or violation of the complicated label restrictions.  But the Ninth Circuit’s attention to the risks of adverse impacts from the products raises additional questions about whether an applicator who chooses to use the products is knowingly assuming a higher risk, and whether a liability insurance provider will cover that risk.  For this reason, growers may want to have a frank discussion with their liability insurance providers about coverage for dicamba drift.

The dicamba roller coaster ride will surely continue, and we’ll keep you updated on the next development.

Read the ODA’s Official Statement Regarding the Use of Over-the-Top Dicamba Products here.

Dicamba takes another blow: Court of Appeals vacates dicamba registration

by:Peggy Kirk Hall, Associate Professor, Agricultural & Resource Law

Published on Thursday, June 04, 2020

Dicamba has had its share of legal challenges, and a decision issued yesterday dealt yet another blow when the Ninth Circuit Court of Appeals  vacated the product’s registration with the U.S. EPA.  In doing so, the court held that the EPA’s approval of the registration violated the provisions of the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), which regulates the use of herbicides and other chemicals in the U.S.  Here’s a summary of how the court reached its decision and a few thoughts on the uncertainty that follows the opinion.

The challenge:  EPA’s approval of three dicamba products

We first have to step back to 2016, when the EPA approved three dicamba-based products– Monsanto’s XTendiMax, DuPont’s FeXapan, and BASF’s Engenia–as conditional use pesticides for post-emergent applications in 34 states, including Ohio.  Although dicamba has been around for years, the approval came after the companies reformulated dicamba to make it less volatile and in anticipation of the development of dicamba tolerant soybean and cotton seeds.  The agency conducted a risk assessment and concluded that if used according to the label restrictions, the benefits of the dicamba products outweighed “any remaining minimal risks, if they exist at all.”  The EPA also provided that the registrations would automatically expire if there was a determination of an unacceptable level or frequency of off-site dicamba damage.

Before the conditional registrations were set to automatically expire in late 2018, the EPA approved requests by Bayer CropScience (previously Monsanto), Cortevo (previously DuPont) and BASF to conditionally amend the registrations for an additional two years.  The approval came despite widespread concerns about dicamba drift and damage during the 2017 growing season.  To address those concerns, EPA chose not to conduct a new risk assessment and instead adopted additional label restrictions that had been proposed by Monsanto/Bayer to minimize off-field movement of dicamba.  Many states added restrictions for dicamba use that exceeded the label restrictions, including banning any use of the product during certain periods.

Several organizations challenged the EPA’s dicamba registration approvals.  The National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America filed suit against the EPA, claiming that the agency violated both FIFRA and the Endangered Species Act in approving the product registrations.  Monsanto requested and was granted permission to intervene in the case.

The Ninth Circuit’s review

To approve the request to amend the dicamba registrations, FIFRA required the EPA to make two conclusions:  first, that the applicant had submitted satisfactory data related to the proposed additional use of the pesticide and second, that the approval would not significantly increase the risk of unreasonable adverse effects on the environment.  The task before the Ninth Circuit Court of Appeals was to review the EPA’s 2018 decision  and determine whether there was substantial evidence to support the EPA’s conclusions and amend the registrations.

The conclusion that drew the most attention from the court was the EPA’s determination that amending the dicamba registrations for two years would not cause unreasonable adverse effects on the environment.  The court determined that the EPA erred in making this conclusion when it substantially understated several risks of dicamba registration, such as:

Misjudging by as much as 25% the amount of acreage on which dicamba would be used in 2018.

Concluding that complaints to state departments of agriculture could have either under-reported or over-reported the actual amount of dicamba damage, when the record clearly showed that complaints understated the amount of damage.

Failing to quantify the amount of damage caused by dicamba, “or even to admit that there was any damage at all,” despite having information that would enable the EPA to do so.

But that’s not all.  The court pointed out that the agency had also “entirely failed to acknowledge other risks, including those it was statutorily required to consider,” such as:

The risk of substantial non-compliance with label restrictions, which the court noted became “increasingly restrictive and, correspondingly, more difficult to follow” and to which even conscientious applicators could not consistently adhere.

The risk of economic costs.  The court stated that the EPA did not take into account the “virtually certain” economic costs that would result from the anti-competitive effect of continued dicamba registration, citing evidence in the record that growers were compelled to adopt the dicamba products just to avoid the possibility of damage should they use non-dicamba tolerant seed.

The social costs of dicamba technology to farming communities.  The court pointed out that a farmer in Arkansas had been shot and killed over dicamba damage, that dicamba had “pitted neighbor against neighbor,” and that the EPA should have identified the severe strain on social relations in farming communities as a clear social cost of the continued registration of the products.

Given the EPA’s understatement of some risks and failure to recognize other risks, the Court of Appeals concluded that substantial evidence did not support the agency’s decision to grant the conditional registration of the dicamba products.  The EPA “failed to perform a proper analysis of the risks and resulting costs of the uses,” determined the court.  The court did not address the Endangered Species Act issue.

What remedy?

A critical point in the decision is the court’s determination of the appropriate remedy for the EPA’s unsupported approval of the dicamba products.  The EPA and Monsanto had asked the court to utilize its ability to “remand without vacatur,” or to send the matter back to the agency for reconsideration.  The remedy of “vacatur,” however, would vacate or void the product registrations.  The court explained that determining whether vacatur is appropriate required the court to weigh several criteria, including:

The seriousness of the agency’s errors against the disruptive consequences of an interim change that may itself be changed,

The extent to which vacating or leaving the decision in place would risk environmental harm, and

Whether the agency would likely be able to offer better reasoning on remand, or whether such fundamental flaws in the agency’s decision make it unlikely that the same rule would be adopted on remand.

The court’s weighing of these criteria led to its conclusion that vacating the registrations of the products was the appropriate remedy due to the “fundamental flaws in the EPA’s analysis.”  Vacating the registrations was not an action taken lightly by the court, however.  The judges acknowledged that the decision could have an adverse impact on growers who have already purchased dicamba products for the current growing season and that growers “have been placed in this situation through no fault of their own.”  Clearly, the court places the blame for such consequences upon the EPA, reiterating the “absence of substantial evidence” for the agency’s decision to register the dicamba products.

What now?

The court raised the issue we’re all wondering about now:  can growers still use the dicamba products they’ve purchased?  Unfortunately, we don’t have an immediate answer to the question, because it depends largely upon how the EPA responds to the ruling.  We do know that:

FIFRA § 136a prohibits a person from distributing or selling any pesticide that is not registered.

FIFRA § 136d allows the EPA to permit continued sale and use of existing stocks of a pesticide whose registration is suspended or canceled.  The EPA utilized this authority in 2015 after the Ninth Circuit Court of Appeals vacated  the EPA’s registration of sulfoxaflor after determining that the registration was not supported by substantial evidence.  In that case, the EPA allowed continued use of the existing stocks of sulfoxaflor held by end-users provided that the users followed label restrictions.  Whether the agency would find similarly in regards to existing stocks of dicamba is somewhat unlikely given the court’s opinion, but remains to be seen.  The EPA’s 2015 sulfoxaflor cancellation order at: https://www.epa.gov/sites/production/files/2015-11/documents/final_cancellation_order-sulfoxaflor.pdf

While the U.S. EPA registers pesticides for use and sale in the U.S., the product must also be registered within a state in order to be sold and used within the state.  The Ohio Department of Agriculture oversees pesticide registrations within Ohio, and also regulates the use of registered pesticides.

If the EPA appeals the Ninth Circuit’s decision to the U.S. Supreme Court, the agency would likely include a request for a “stay” that would delay enforcement of the court’s Order.

Bayer strongly disagrees with the decision but has paused its sale, distribution and use of XtendiMax while assessing its next step and awaiting EPA direction.  The company states that it will “work quickly to minimize any impact on our customers this season.”  Bayer also notes that it is already working to obtain a new registration for XtendiMax for the 2021 season and beyond, and hopes to obtain the registration by this fall.  See Bayer’s information T: https://www.roundupreadyxtend.com/Pages/xtendimax-updates.aspx

BASF and Corteva have also stated that they are awaiting the EPA’s reaction to the decision, and will “use all legal remedies available to challenge this Order.”

Syngenta has clarified that its Tavium Plus VaporGrip dicamba-based herbicide is not part of the ruling and .that the company will continue selling that product.

For now, all eyes are on the U.S. EPA’s reaction to the Ninth Circuit’s decision, and we also need to hear from the Ohio Department of Agriculture.  Given the current state of uncertainty, it would be wise for growers to wait and see before taking any actions with dicamba products.  We’ll keep you posted on any new legal developments.  Read the court’s decision in National Family Farm Coalition et al v. U.S. EPA AT: https://farmoffice.osu.edu/sites/aglaw/files/site-library/Ninth_Circuit_Dicamba_Registration_Petition.pdf

 

Farm Office Live Webinar Slated for Thursday, June 11 at 9:00 a.m.

OSU Extension is pleased to be offering the a “Farm Office Live” session on Thursday morning, June 11 from 9:00 to 10:30 a.m.  Farmers, educators, and ag industry professionals are invited to log-on for the latest updates on the issues impact our farm economy.

The session will begin with the Farm Office Team answering questions asked over the two weeks.  Topics to be highlighted include:

  • Updates on the CARES Act Payroll Protection Program
  • Prevent Plant Update
  • Business & Industry CARES Act Program
  • EIDL Update
  • CFAP- update on beef classifications and commodity contract eligibility
  • Dicamba Court Decision Update
  • Other legal and economic issues

Plenty of time has been allotted for questions and answers from attendees. Each office session is limited to 500 people and if you miss the on-line office hours, the session recording can be accessed at farmoffice.osu.edu the following day.  Participants can pre-register or join in on Thursday morning at  https://go.osu.edu/farmofficelive 

 

Navigating Direct Support for Ohio’s Farmers and Ranchers Webinar on May 27 at 9:30 am

Join OSU Extension’s Ben Brown and Dianne Shoemaker for a webinar  on “Navigating Direct Support for Ohio’s Farmers and Ranchers” on Wednesday, May 27, 2020 at 9:30 am with special guest, Ohio Farm Service Agency Director Leonard Hubert.  This webinar is generously produced and distributed by Ohio Ag Net.

This webinar is produced and distributed by Ohio Ag Net.

The webinar will be available for viewing at https://farmoffice.osu.edu/, or through Ohio Ag Net’s Facebook Live Video.