By By Johnathan Hettinger/Midwest Center for Investigative Reporting
The Trump administration announced on Monday that farmers will be able to continue to spray dicamba through July 31, an apparent rejection of a federal court ruling issued last week that immediately banned the herbicide’s use over-the-top of soybean and cotton crops.
Last week, the U.S. Ninth Circuit Court of Appeals, in response to a lawsuit filed by conservation groups, vacated the federal registration of certain versions of the weedkiller dicamba. The court ruled the U.S. Environmental Protection Agency did not have enough evidence to support its decision and underestimated and ignored many risks that the weed killer posed on other farmers and natural areas. Because of that, the court ruled herbicide should be banned immediately.
But EPA Administrator Andrew Wheeler had a different interpretation of the ruling. The agency released a 12-page cancellation order Monday that ruled the sale of dicamba herbicides needed to be halted, but farmers could continue to use their existing supply through July 31.
“Today’s cancellation and existing stocks order is consistent with EPA’s standard practice following registration invalidation, and is designed to advance compliance, ensure regulatory certainty, and to prevent the misuse of existing stocks,” Wheeler said in a prepared statement.
The Center for Food Safety, which along with three other conservation groups, filed the lawsuit that resulted in the ruling. The groups promised to take the EPA back to court.
“The Trump administration is again showing it has no regard for the rule of law. All users that continue to not seek alternatives should be on notice that they are using a harmful, defective, and unlawful product. We will bring the EPA’s failure to abide by the Court’s order to the Court as expeditiously as possible,” said George Kimbrell, the legal director for the Center for Food Safety in a statement issued Monday.
Dicamba has been sprayed on crops since the 1960s, but greatly increased in use in the past few years after Monsanto genetically engineered soybean and cotton crops to resist being sprayed by the herbicide. Monsanto touted its dicamba-tolerant crop system – widely viewed as a successor to the popular Roundup which started to fail to kill many weeds – as the largest biotechnology launch in its history.
But the herbicide has damaged millions of acres of non-resistant crops and natural areas. Thousands of farmers have filed complaints about the damage, and Bayer, which bought Monsanto in 2018, faces hundreds of lawsuits over the herbicide. Earlier this year, a federal jury ruled Bayer and BASF, which makes a version of the herbicide, must pay a Missouri peach farmer $265 million for damage incurred on his farm.
About two-third of U.S. soybean crops and more than half of cotton crops are dicamba-tolerant. The month of June is a critical time for farmers applying herbicides, and many states have imposed cut-off dates for dicamba application after the widespread crop damage in recent years. Without dicamba, many farmers do not have an effective herbicide for many weeds that have developed resistance to glyphosate, the active ingredient in Roundup. These “super weeds” can lead to lower yields and, in turn, lower profits for farmers.
In his ruling, Judge William Fletcher, writing on behalf of the three-judge panel, expressed concerns for farmers who had planted the crops, but said the EPA created the situation by failing to do a proper analysis. The decision applied to versions of dicamba made by Bayer, BASF and Corteva.
“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 guidance from the EPA came after almost a week of silence, following the Ninth Circuit Court’s decision. In the days following the decision, states asked the EPA for guidance and made their own decisions. At least 15 states decided to continue to allow the use of dicamba.
The Illinois Department of Agriculture, which oversees pesticides in the nation’s top producing soybean state, said the court ruling “clearly calls for the stop of use, sale and distribution” of the herbicides. South Dakota also banned the herbicide.
In a statement Friday, U.S. Secretary of Agriculture Sonny Perdue asked the EPA to do what it could to make the herbicide available this growing season. Wheeler also said farmers need the herbicide.
“At the height of the growing season, the Court’s decision has threatened the livelihood of our nation’s farmers and the global food supply,” Wheeler said in a statement.
Lori Ann Burd, environmental health program director for the Center for Biological Diversity, which also challenged the registration, said the EPA created the timing issue, not the conservation groups.
“This timing is entirely manufactured by the EPA. We did everything we could to expedite this case,” Burd said.
The EPA originally approved XtendiMax, Bayer’s version of dicamba, in 2016 for two years. The plaintiffs in this case challenged that decision, but the Ninth Circuit failed to make a decision prior to the EPA re-approving XtendiMax for two more years in October 2018. Because of that decision, the prior lawsuit was ruled to be moot, and the conservation groups had to re-file a lawsuit challenging the 2018 decision.
In this case, the EPA took months to produce the administrative record and asked for more time for briefing on multiple occasions, Burd said. The court also was fully briefed on the impacts of banning the herbicide mid-season, but chose to do so anyway, she pointed out.
Bayer praised the EPA’s decision on Monday evening. Last week, Bayer said it is working to get dicamba re-registered for the 2021 growing season.
“We welcome the EPA’s swift action,” said Bayer spokeswoman Susan Luke in a statement. “XtendiMax and the other low-volatility dicamba products are vital tools that many growers rely on to safely, successfully and sustainably protect their crops from weeds.
Luke, on behalf of Bayer, did not answer questions from the Midwest Center for Investigative Reporting on how the company would proceed and whether the company would engage in a buyback program from farmers, saying the company would provide more guidance in the coming days.
“Absent this (EPA) guidance, we had no way of addressing the kind of decisions that are reflected in your questions,” Luke wrote in an email.
BASF issued a statement on Tuesday, saying that it supports the EPA’s decision to allow farmers to use stocks of its dicamba-based herbicide, Engenia, but “we believe that additional clarity and flexibility is required to address the complexities of the supply chain so that farmers have the opportunity to use Engenia this season in accordance with the EPA order. Therefore, we will be working with the EPA to address this issue.”
BASF said it will stop its sales. Many farmers do not purchase herbicides directly, but instead rely on commercial applicators to apply the herbicides.
Center for Biological Diversity Senior Attorney Stephanie Parent, who served as co-counsel in the case, issued a statement on Monday night: “In the reckless, lawless logic of the Trump EPA, if you have DDT you already purchased in your barn, you can legally use it. That’s absurd. We will ask the court to enforce it’s clear order instructing farmers not to use dicamba on their crops, period.”
This coverage is supported with a grant from the Fund for Investigative Journalism. The Midwest Center for Investigative Reporting is 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. Learn More »