U.S. court rules dicamba use must cease, affecting millions of acres of crops

Farmers can no longer spray the controversial pesticide dicamba over the top of genetically modified soybeans and cotton, the U.S. Ninth Circuit Court of Appeals ruled Wednesday.

Dicamba is a weedkiller whose use has skyrocketed in recent years after agribusiness giant Monsanto introduced genetically engineered soybean and cotton seeds that resist the herbicide. The ruling means that farmers will have to immediately cease using dicamba on millions of acres of crops across the Midwest and South. About 60 million acres of crops will be affected.

A group of farming and conservation organizations — the National Family Farm Coalition, the Center for Food Safety, the Center for Biological Diversity, and the Pesticide Action Network — had filed a lawsuit alleging that the EPA unlawfully approved the herbicide.

In its decision, the court vacated the EPA’s registration of Bayer’s XtendiMax with VaporGrip Technology dicamba herbicide, ruling that in approving the weedkiller, the agency had violated the Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA, the federal law regulating pesticides. Bayer bought Monsanto in 2018.

The ruling also vacates approval for dicamba-based herbicides made by BASF and Corteva.

Bayer spokeswoman Susan Luke said the company “strongly disagrees” with the ruling and is assessing its options. “If the ruling stands, we will work quickly to minimize any impact on our customers this season,” she wrote in an emailed statement Wednesday night. “Our top priority is making sure our customers have the support they need to have a successful season.”

In a statement posted online Thursday morning, Bayer said it would pursue a new registration for dicamba for the 2021 growing season, saying, “We hope to obtain the new registration by this fall.”

Since new versions of dicamba made by Monsanto and BASF were released for the 2017 growing season, off-target movement of the weedkiller has damaged millions of acres of non-resistant crops and natural areas each year. The herbicide is at the heart of hundreds of lawsuits filed over the damage. Earlier this year, a Missouri jury awarded a peach farmer $265 million for damage to his crops from dicamba.

The EPA originally approved dicamba in 2016 for two years and then reaffirmed that decision in 2018 for another two years, through the 2020 growing season.

The federal lawsuit alleged that the agency had violated FIFRA by not having enough evidence to support its decision, including not having a single study looking at how dicamba moving off-target would affect soybean yields.

The three-judge panel, which heard oral arguments in April, agreed with the plaintiffs, finding that the EPA had underestimated and ignored many of the risks dicamba posed to other farmers and the natural world.

“We are aware of the practical effects of our decision,” Judge William Fletcher wrote on behalf of the three-judge panel. “Among other things, we are aware of the adverse impact on growers who have already purchased DT soybean and cotton seeds and dicamba products for this year’s growing season, relying on the availability of the herbicides for post-emergent use.”

Fletcher said the judges realize the decision creates challenges for farmers. “We acknowledge the difficulties these growers may have in finding effective and legal herbicides to protect their DT crops if we grant vacatur. They have been placed in this situation through no fault of their own. However, the absence of substantial evidence to support the EPA’s decision compels us to vacate the registrations,” the court wrote.

The court ruled that the EPA had understated both the amount of dicamba-tolerant seed acreage and the amount of dicamba sprayed. It said the EPA “purported to be agnostic as to whether formal complaints of dicamba damage under-reported or over-reported the actual damage, when record evidence clearly showed that dicamba damage was substantially under-reported.”

“Finally, the EPA refused to estimate the amount of dicamba damage, characterizing such damage as ‘potential’ and ‘alleged,’ when record evidence showed that dicamba had caused substantial and undisputed damage,” said the decision.

The ruling also said that the EPA did not acknowledge the high likelihood that restrictions on over-the-top dicamba applications imposed by the 2018 label would not be followed. The agency, it said, also failed to acknowledge the risk that the registrations would have “anti-competitive economic effects in the soybean and cotton industries” because farmers would be forced to grow dicamba-tolerant beans.

The court found “the EPA entirely failed to acknowledge the risk that [over-the-top] dicamba use would tear the social fabric of farming communities.”

The lawsuit also alleged that the EPA had violated the Endangered Species Act by not consulting with the U.S. Fish and Wildlife Service on whether dicamba would harm endangered species and had used arbitrary and capricious science to determine that a 57-foot buffer would protect endangered species.

The federal court did not rule on the ESA allegation because it found that the EPA had violated FIFRA.

“FIFRA is a tough law to win under,” said Lori Ann Burd, environmental health program director at the Center for Biological Diversity. “It gives tremendous deference to EPA in deciding what unreasonable harm is. Even with that much leeway, the court could not possibly find it because the violations were so incredibly egregious.”

At the time of the EPA’s 2018 decision, farmers had filed more than 4,200 official complaints that alleged damage to at least 4.7 million acres of soybeans from the use of dicamba on Monsanto’s genetically engineered soybean and cotton plants.

University of Illinois weed scientist Aaron Hager said that many academics felt the dicamba products had not been “thoroughly evaluated” before commercialized for sale. “We can try and guess how they would behave,” he said, “but we really had no definitive data before they came to market.”

The federal judge’s comments in the ruling, Hager said, “closely reflect the concerns many of us in the academic world had.” He said Wednesday’s ruling also represents the first time in his 27 years as a weed scientist that an herbicide label was vacated during the “season of use.” This “obviously suggests we are in a bit of uncharted territory.”

This story was produced by the Midwest Center for Investigative Reporting, a nonprofit, online newsroom offering investigative and enterprise coverage of agribusiness, Big Ag, and related issues through data analysis, visualizations, in-depth reports, and interactive web tools.