Dicamba on trial: Peach farmer’s case against Bayer, BASF set to begin Monday

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Soybeans with suspected dicamba damage north of Flatville, Illinois, on August 21, 2019. photo by Darrell Hoemann/The Midwest Center for Investigative Reporting

After five years of reported crop damage by the weed killer dicamba, German agribusiness companies Bayer and BASF will head to trial next week to defend themselves against charges that they intentionally caused the problem in order to increase their profits.

The lawsuit, originally filed in November 2016 by a southeastern Missouri peach farmer, alleges that Monsanto, which was acquired by Bayer in 2018, and BASF created the circumstances that have damaged millions of acres of crops. Read the full complaint here.

The trial is set to begin Monday in the United States District Court for the Eastern District of Missouri in Cape Girardeau. 

"Through their partnership, joint ventures, shared technologies, and mutual greed, Defendants have conspired to create and encourage an ecological disaster in Missouri and other states to increase the profits and demand for their dicamba products," the lawsuit states.

Bayer and BASF deny the allegations. 

For years, the companies have blamed the damage on other factors, including other herbicides, applicator misuse and weather events. 

“BASF continues to support the use of Engenia herbicide for growers battling resistant weeds and is committed to ensuring that its products meet all regulatory standards, including rigorous safety and environmental testing. We look forward to defending our product in this case,” said Odessa Hines, a spokeswoman for BASF. Read BASF's response to the complaint here.

A Bayer spokesman said there is no "merit to the plaintiff’s claims."

"This lawsuit attempts to shift responsibility to Monsanto and BASF and away from what is really causing Bader Farm’s alleged damages. As multiple experts have confirmed and as Bader Farms admits, its peach orchards are suffering from a pervasive soil fungus that kills peach trees," said Kyel Richard, a spokesman for Bayer, in an emailed statement.

"This soil fungus is responsible for destroying much of Missouri’s historic commercial peach production and it has unfortunately arrived on Bader Farms. Monsanto and its products are not responsible for the losses sought in this lawsuit; rather, those losses are due to this unrelated fungus and other natural causes." Read Bayer's response to the complaint here or see their full statement below.

The lawsuit was filed by Bill Bader, the largest peach farmer in Missouri, whose crops have allegedly been damaged by dicamba drift each year since 2015. The lawsuit is among a class-action suit and the first of many filed by farmers over alleged dicamba damage. 

The allegations revolve around dicamba, a volatile weed killer originally developed in the 1960s that gained more popularity in recent years after Monsanto developed genetically engineered soybean and cotton seeds that could withstand being sprayed by the herbicide. 

Monsanto developed the dicamba-resistant seeds after many weeds started developing resistance to glyphosate – the active ingredient in Roundup, the most widely used herbicide in the world. Dicamba kills plants by causing them to grow too quickly, which causes them to whither and die.

Monsanto released the cotton seeds in time for the 2015 growing season and released the soybean seeds for the 2016 growing season. However, the accompanying herbicide, versions of which were created by both Monsanto and BASF and touted to be less likely to drift, was not approved by the U.S. Environmental Protection Agency until the 2017 growing season. 

Many crops, including non-resistant soybeans and speciality crops, are extremely sensitive to dicamba and can be damaged by small amounts in the air.

Prior to the resistant seeds, dicamba had not been widely sprayed during growing season because of its propensity to drift. Instead, it was largely used as a “burndown” weed killer to control weeds before planting and after harvest.

During those two years where the seeds were planted and the herbicide was not approved, many farmers illegally sprayed older versions of dicamba, which were not approved for use on the crops and were likely to drift. This illegal spraying harmed Bader’s crops, the suit alleges. The lawsuit also alleges Monsanto and BASF knew this would happen because it would likely lead to future sales because farmers would engage in “defensive” planting to protect their crops from drift.

Even after their new versions of dicamba were approved, the damage continued. In 2017, an estimated 3.1 million acres of soybeans were damaged by dicamba, according to an analysis by University of Missouri crop science professor Kevin Bradley. 

The pesticide drift also had other effects, such as damaging sensitive crops like Bader’s peach farm, said Bev Randles, an attorney for Bader Farms. Randles said Monsanto and BASF are responsible for releasing herbicides that they knew were volatile.

“There is no such thing as a dicamba-tolerant peach tree,” Randles said. 

The cumulative drift from years of spraying caused crippling damage thousands of Bader’s trees and led his peach farm to no longer be a sustainable operation, the lawsuit alleges. The overall lost future revenue is estimated at more than $55 million.

“Every acre of Plaintiffs' orchards, fields, and crops has suffered dicamba damage, resulting in substantial yield losses and lost profits," the lawsuit alleges.

Each year, more acres were planted with dicamba-resistant soybeans, and the lawsuit alleges some of this was “defensive” planting to help protect crops from being damaged by drifting dicamba. The number of dicamba-resistant soybeans planted in the U.S. increased from about 20 million acres in 2017 to 40 million acres in 2018 to 60 million acres in 2019, according to Bayer. 

In response to suspected damage nationwide, the U.S. Environmental Protection Agency has increased the restrictions on the dicamba’s usage each of the past two years, and many states have imposed additional restrictions, including requiring increased training and implementing cut-off dates after which the chemical cannot be sprayed.

Even with those restrictions, crop damage increased, according to state pesticide complaint numbers. In 2019, Illinois, the largest soybean producing state, more than 700 pesticide misuse complaints were filed, compared to fewer than 130 in 2016. 

This story was updated January 25 to include comments from Bayer, which were provided January 25, 2020, following publication of this story. The full statement is below.

This lawsuit attempts to shift responsibility to Monsanto and BASF and away from what is really causing Bader Farm’s alleged damages.  As multiple experts have confirmed and as Bader Farms admits, its peach orchards are suffering from a pervasive soil fungus that kills peach trees.  This soil fungus is responsible for destroying much of Missouri’s historic commercial peach production and it has unfortunately arrived on Bader Farms.  Monsanto and its products are not responsible for the losses sought in this lawsuit; rather, those losses are due to this unrelated fungus and other natural causes.

In 2015 and 2016, Monsanto’s XtendFlex cotton and Xtend soybeans, respectively, were approved for sale by the United State Department of Agriculture.  Its XtendiMax herbicide was extensively tested and approved by the EPA for use with Xtend crops starting in 2017.  Monsanto’s Xtend seed and low volatility XtendiMax herbicide represent break-through technological advances that were sorely needed by growers to produce high-yielding crops and to combat tough-to-control weeds.  Upon EPA approval of the Xtendimax herbicide, Monsanto trained more than 50,000 growers, applicators, licensees and others on proper label application. 

Monsanto also took many steps to warn growers, dealers and applicators that dicamba herbicides were not approved for in-crop use during the 2015 and 2016 seasons, and that such use would violate state and federal laws and was not authorized by Monsanto.  Monsanto included a prominent warning with all bags of Xtend seed sold and provided extensive training with all our teams that the use of a dicamba herbicide over Xtend cotton and soybean seeds was not permitted and would be illegal. - Kyel Richard, senior external communications manager, Bayer U.S. – Crop Science.