The U.S. Environmental Protection Agency cancelled the registration of three dicamba herbicide products after a federal appeals court ruled that the agency “substantially” understated the products’ risks and under-reported damages.
Mounting drift complaints in many states have “torn apart the social fabric of many communities,” the court said. In Indiana alone, complaints about drift damage to neighboring crops increased by more than 30-fold after dicamba was introduced as a weed killer in soybean fields in 2016.
The EPA issued a cancellation order for the registration of Bayer CropScience’s XtendiMax with VaporGrip Technology, Corteva, Inc.’s FeXapan and BASF SE’s Engenia that bans the sale or distribution of the products nationwide.
The order allows farmers to use existing stocks of the three products until July 31. The state of Indiana prohibits use of the products after June 20.
The action is a result of a lawsuit brought by several groups, including the National Family Farm Coalition and the Center for Food Safety, that argued the EPA violated federal law by registering dicamba products that caused damages to millions of acres of crops across the U.S. through vapor drift and inflated the benefits of the products.
The U.S. Court of Appeals for the Ninth Circuit ruled against the EPA and Monsanto Co., now known as Bayer CropScience, and vacated the registrations.
“The EPA made multiple errors in granting the conditional registrations. As described above, the EPA substantially understated the risks it acknowledged, and it entirely failed to acknowledge other risks,” wrote U.S. Circuit Judge William A. Fletcher. “We conclude that the ‘fundamental flaws’ in the EPA’s analysis are so substantial that it is exceedingly ‘unlikely that the same rule would be adopted on remand.’”
The three-judge panel said the EPA understated risks like dicamba damage and “entirely failed to acknowledge other risks” like the economic and social costs to farmers.
Dicamba pesticide products can drift into neighboring fields, destroying crops and other vegetation that are not resistant to the herbicide.
The Office of the Indiana State Chemist found that between 2008 and 2016 the average number of yearly complaints for agricultural drift averaged about five per year. That changed when dicamba was introduced for soybeans in 2016. The following year drift complaints skyrocketed and continued to climb with 132 complaints in 2017, 135 in 2018 and 178 in 2019.
The court said the EPA undercounted the amount of dicamba-tolerant crops in its decision and refused to estimate the amount of damage caused by the dicamba products. The court also found that the EPA did not consider the social cost of dicamba registration.
In late 2019, the OISC restricted the use of the Engenia, FeXapan, Xtendimax and another dicamba product, Tavium, to reduce the number of complaints, prohibiting the use of the herbicides after June 20, 2020.
“The number of off-target complaints received by OISC has continued to rise since the introduction of this herbicide technology on soybeans in 2017, and 2019 was unfortunately no exception. The agency is taking state action to reduce those numbers,” said State Chemist and Seed Commissioner Robert Waltz, of the Purdue University Office of Indiana State Chemist. “This application cutoff restriction was reached after exhaustive complaint incident analysis by OISC over the last three years, as well as consultation and input from the Indiana Pesticide Review Board and stakeholders in the agriculture industry.”
The OISC also said it would support the Purdue University Cooperative Extension Service in advising the state’s soybean farmers about weed control alternatives to dicamba.
In 2018, 22% of Indiana’s soybean acres were treated with dicamba products, and 43% of the state’s soybean acres were planted with dicamba-tolerant seeds.
Dicamba-tolerant crops are sometimes a farmer’s only protection when neighboring farmers decide to spray dicamba herbicides. They are often sold by the same companies who produce the herbicides.
But the protection comes at a high cost. Dicamba-tolerant seeds are often much more expensive than traditional seeds. Some farmers have said the need to plant a technology to protect themselves from dicamba drift is “tantamount to extortion.”
The EPA said the court’s decision threatens the livelihood of the nation’s farmers and the global food supply.
“We are disappointed with the decision. The 2020 growing season is well underway and this creates undue burden for our first conservationists – farmers,” said EPA administrator Andrew Wheeler. “This ruling implicates millions of acres of crops, millions of dollars already spent by farmers, and the food and fiber Americans across the country rely on to feed their families.”
More farmers have recently taken dicamba producers to court for damages caused by dicamba products.
At least 140 farmers in just one jurisdiction have filed suit over dicamba damages.
In February, a Missouri peach farmer was awarded $265 million in compensatory and punitive damages after a jury found that Monsanto Co. and BASF SE were involved in a “conspiracy” to increase profits at the expense of farmers.
Both companies said they would appeal the decision.