Dicamba is a weed killer that skyrocketed in use in recent years after agribusiness giant Monsanto introduced genetically engineered soybean and cotton seeds that resist the herbicide. On Wednesday, the U.S. Ninth Court of Appeals ruled that the versions of the pesticide made by Monsanto and others can no longer be used legally. The ruling means that farmers will have to immediately cease the use of dicamba on millions of acres of crops across the Midwest and South. About 60 million acres of crops will be affected.

The decision comes after years of complaints that the herbicide drifted and damaged millions of acres of crops, which has lead to hundreds of lawsuits.

Check by here as we continue to report on this decision and its impact.

Illinois Department of Agriculture bans use, sale of dicamba in 2020

While the EPA has not yet issued guidance, 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. The following statement was released by the IDA through the Illinois Fertilizer and Chemical Association:

IDA legal counsel has looked at the court ruling and believes it clearly calls for the stop of use, sale and distribution of all uses of the three products: Xtendimax, Engenia and FeXapan effective immediately.   The Tavium registration is not affected by this ruling.  We are expecting a statement from IDA very soon but this is the situation in Illinois, and we ask for our members to abide by this determination and help communicate this serious message.  More information with be forthcoming and we will communicate as soon as we have more details from IDA or US EPA on the management of product already in the supply chain.  

BASF issues statement on Ninth Circuit decision

BASF spokeswoman Odessa Patricia Hines issued the following statement on Thursday in response to the court’s decision:

The Order issued on June 3 by the United States Court of Appeals for the Ninth Circuit vacating the registration of Engenia® herbicide and two other products is unprecedented and has the potential to be devastating to tens of thousands of farmers. These farmers have counted on over-the-top (OTT) applications of dicamba-based products, including Engenia herbicide, to control resistant weeds across tens of millions of dicamba-tolerant soybean and cotton acres.

Time is of the essence. Farmers have less than a month to protect millions of acres under threat from resistant weeds that could lead to significant revenue loss in an already challenging season.

We are currently reviewing the Order and are waiting on further direction from the U.S. EPA on actions they will take as a result of this Order. We will use all legal remedies available to challenge this Order and we remain committed to serving our customers with safe and effective crop protection solutions, including Engenia herbicide.

Bayer launches website with up-to-date info on what dicamba vacature means for farmers – June 4, 2020

Bayer, the maker of dicamba-tolerant soybean and cotton seeds as well as one of the companies that sells dicamba-based herbicides, has created a website with the latest information for farmers on what Wednesday’s decision by the Ninth Circuit means.

The company said it “will work quickly to minimize any impact on our customers this season. Our top priority is making sure our customers have the support they need to have a successful season.”

The American Soybean Association, which represents more than 300,000 soybean farmers, issued the following statement:

“The American Soybean Association (ASA) is disappointed by the 9th
Circuit’s decision to overturn the Environmental Protection Agency’s dicamba registration approval. Farmers rely on EPA and the regulatory process to effect science-based determinations that allow them
to use safe, efficient tools to responsibly manage their farms. ASA is reviewing the court’s decision to fully determine its repercussions on the soy industry, but regrets that the future of dicamba – a very effective weed management product when used responsibly – is on the line.”

After dicamba decision, ‘Honest to God, right now, I don’t know what to tell people’

Soybean and cotton farmers, pesticide applicators and ag officials across the United States are scrambling Thursday morning to figure out what Wednesday’s vacature of dicamba-based herbicides means for the 2020 growing season.

On Wednesday, the U.S. Ninth Circuit Court of Appeals vacated the registration of three dicamba-based herbicides, ruling that the U.S. Environmental Protection Agency unlawfully approved the pesticides.

In the ruling, the judges admitted that the decision would cause a great deal of uncertainty for farmers who were put in the position through no fault of their own.

By Thursday morning, questions remained unanswered. Farmers who have already purchased dicamba don’t know if they can spray the herbicide.

The U.S. EPA had a one-sentence statement: “EPA is currently reviewing the court decision and will move promptly to address the Court’s order.”

Jean Payne, the president of the Illinois Fertilizer and Chemical Association, which includes pesticide applicators, said she was waiting on guidance from the Illinois Department of Agriculture. The department did not respond to a request for comment Thursday morning.

“Honest to God, right now, I don’t know what to tell people,” Payne said. “This is unprecedented. This is not something that has happened in my career, ever.”

The Association of American Pesticide Control Officials has asked for clarification from the EPA, said Andrew Thostenson, program specialist with North Dakota State University Extension Service.

“I would be surprised if there wasn’t clarity on this thing relatively soon,” he said.

Thostenson said he has been receiving constant calls from farmers since the decision was announced Wednesday night.

“Right now, there’s just a lot of unknowns,” said Thostenson.”If you’re a farmer getting ready to spray your weeds, we don’t really have any good answers for them right now.”

In recent years, dicamba has been used to kill “super weeds” that have developed resistance to other pesticides. Without dicamba, many farmers don’t have very good options of how to kill these weeds, Thostenson said.

Thostenson said he could see some farmers illegally spraying the herbicide because they have in the past. In 2015 and 2016, dicamba-tolerant crops were planted, but the herbicides were not yet approved, and many farmers illegally sprayed older versions of the herbicide.

Dicamba-tolerant crops are planted on about 60 million acres across the U.S. That is about 60 percent of soybean fields. Many states have imposed additional restrictions, including cut-off dates on dicamba, and for each day that uncertainty continues, farmers have a limited time to apply dicamba, if the use is allowed through this year.

“The timing on this thing couldn’t be worse. It could not be worse timing,” Thostenson said.

Controversial herbicide dicamba no longer legal, federal court rules – June 3, 2020

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 weed killer that skyrocketed in use 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 the use of dicamba on millions of acres of crops across the Midwest and South. About 60 million acres of crops will be affected.

Farming and conservation organizations the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity and Pesticide Action Network, filed a lawsuit alleging that the U.S. Environmental Protection Agency unlawfully approved the herbicide. 

The court vacated the U.S. Environmental Protection Agency’s registration of Bayer’s XtendiMax with VaporGrip Technology dicamba herbicide, ruling that the agency violated the Federal Insecticide, Fungicide and Rodenticide Act, 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 options.

“If the ruling stands, we will work quickly to minimize any impact on our customers this season. Our top priority is making sure our customers have the support they need to have a successful season,” Luke wrote in an emailed statement Wednesday night.

In a statement posted online Thursday morning, Bayer said it would pursue a new registration of its dicamba herbicide for the 2021 growing season and “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, the off-target movement of dicamba has damaged millions of acres of non-resistant crops and natural areas each year.  The herbicide is also 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 from dicamba to his crops.  

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

The federal lawsuit alleged that the agency violated the Federal Insecticide, Fungicide and Rodenticide Act, commonly referred to as FIFRA, by not having enough evidence to support its decision, including not having a single study looking at how dicamba moving off-target affects soybean yield.

The three-judge panel, which heard oral arguments in April, agreed with plaintiffs, finding that the EPA underestimated and ignored many risks that dicamba imposed on 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 difficulty 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 found the EPA understated the amount of dicamba-tolerant seed acreage and the amount of dicamba sprayed. The court said the EPA “purported to be agnostic as to whether formal complaints of dicamba damage under-reported or overreported 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,”  Fletcher wrote in the decision on behalf of the panel.

Fletcher also wrote that the EPA did not acknowledge the high likelihood that restrictions on over-the-top dicamba application imposed by the 2018 label would not be followed.” 

The EPA also failed to acknowledge the risk the registrations would have “anticompetitive 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 the EPA violated the Endangered Species Act by not consulting with the U.S. Fish and Wildlife Service on whether dicamba would harm endangered species and used arbitrary and capricious science to develop a 57-foot buffer to protect endangered species.

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

“FIFRA is a tough law to win under,” said Lori Ann Burd, environmental health program director for 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.”

By 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 reflects the concerns many of us in the academic world had.”

Wednesday’s ruling also means that this is the first time in Hager’s 27 years as a weed scientist that a herbicide label was vacated during the “season of use.”

“Obviously this suggests we are in a bit of uncharted territory,” he said. 

This coverage is supported with a grant from the Fund for Investigative Journalism.

Type of work:

Johnathan Hettinger focuses on pesticide coverage for Investigative Midwest. Growing up in central Illinois, Johnathan saw and had family members working in all aspects of agribusiness, from boots-in-the-field...

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