EPA Defends Continued Use of Dicamba Despite Court Order

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The nation’s environmental watchdog is allowing the continued use of a controversial weedkiller despite a court decision this month outlawing the agricultural use of the herbicide dicamba.

A federal appeals court banned the popular weedkiller in a decision in early June, after finding that the Environmental Protection Agency (EPA) ignored clear evidence of dicamba’s potential to destroy millions of acres of crops. The opinion states that the EPA made “multiple errors” in granting the herbicide’s conditional registrations.

But the EPA is permitting farmers to use dicamba the rest of the growing season, saying an immediate ban on the product “would have draconian effects on the U.S. agricultural system,” as Law360 reported.

Dicamba is a chemical herbicide that has been sprayed on soybeans, cotton and other crops for over 50 years. It is an effective weedkiller, but the herbicide’s high tendency to drift poses a threat to surrounding plant life that is not genetically engineered to resist the herbicide — an issue the 9th U.S. Circuit Court of Appeals noted in its ruling.

The court found the EPA failed to estimate or quantify the actual amount of damage caused by dicamba herbicides, “or even admit that there was any damage at all.”

Dicamba has been registered for limited use since 1967, but farmers in recent years have flocked to a reformulated version of the herbicide as a replacement for glyphosate. Glyphosate-based herbicides like Roundup have traditionally been used by farmers, but the herbicide’s extensive use has spawned generations of glyphosate-resistant weeds. In response, agronomical companies like Monsanto, now owned by chemical giant Bayer, turned to new versions of dicamba herbicides and accompanying dicamba-resistant seeds as an alternative to kill weeds and increase crop yields.

In its ruling, the court determined that the EPA had blatantly disregarded other potential risks such as users ignoring “onerous” restrictions on the use of dicamba. According to the Guardian, Monsanto, BASF and Corteva Agriscience told the EPA that so long as farmers followed the specific instructions disclosed in products’ labeling, their dicamba-based herbicides would have low volatility and generate minimal damage from drifting. However, these labeling instructions are nearly impossible to abide by.

“There doesn’t appear to be any way for an applicator to be 100% legal in their application,” stated Brian Major in an email to Keigwin of the EPA. “[T]here is no legal way to spray this field. You can’t apply dicamba with a wind speed of 0 MPH (must be 3–10 MPH) and you can’t apply it when the wind is blowing towards a sensitive crop. So there is really no way to use the products.”

In 2016, the EPA approved two-year amended registrations of dicamba herbicides “XtendiMax” by Monsanto, “Engenia” by BASF, and “FeXapan” by Corteva (formerly known as Dupont). The companies said the agents had been reformulated to be “less volatile” to reduce drift.

Two years later, the EPA again issued two-year conditional registrations for the trio of dicamba herbicides — despite new bans on the products in Arkansas and Missouri. Following the second approval, a group including the National Family Farm Coalition, Center for Biological Diversity, and Pesticide Action Network North America sought a review of the EPA’s decision, arguing the agency’s approval violated both the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act.

In finding for the petitioners this month, the U.S. Court of Appeals agreed, determining the agency had violated FIFRA with its re-approvals and vacating the decision.

FIFRA regulates herbicide sale, use and labeling. Under FIFRA, the Administrator of the EPA is permitted to “conditionally amend” the registration of a pesticide to allow for new uses, so long as the amendment does not yield an “unreasonable adverse effect on the environment.” The Act defines “unreasonable adverse effects on the environment” to include “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide.”

In weighing FIFRA, the court determined that the EPA substantially understated the amount of dicamba-resistant seeds that had been planted in 2018 and thus the amount of dicamba herbicide that had been sprayed on growing crops. Additionally, the EPA “purported to be agnostic” as to whether complaints of dicamba damage either underreported or overreported actual damage, despite overwhelming record evidence that indicated dicamba damage was significantly under-reported.

Defending its dicamba policy, the EPA said it would allow the herbicide’s use through July, arguing the court never ordered a ban.

Earlier this year, a Missouri peach farmer was awarded $265 million in an action against Monsanto and BASF for the loss of his livelihood due to extensive farm damage caused by dicamba drift. His attorney, Bill Randles, obtained hundreds of corporate records indicating that Monsanto and BASF have known of the harm posed by dicamba. One BASF document, he said, referred to complaints of dicamba damage as a “ticking time bomb” that has “finally exploded.”

By Lynne Higby

Lynne Higby is a third-year law student at the University of Florida. She is currently based out of Gainesville, Florida, and is excited to further her legal career in Los Angeles following graduation. In her free time, she loves to hike, ski, and do what she can to get outdoors.

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