One of the most widely used herbicides in the United States can no longer be sprayed on 60 million acres of crops this year, after a federal court ruled Wednesday that the U.S. Environmental Protection Agency broke the law in approving versions of the herbicide.
The U.S. Ninth Circuit Court ruling, in response to a lawsuit filed by conservation groups, negates the federal registration of certain versions of the weedkiller dicamba, a herbicide which has been used since the 1960s but modified in recent years by Monsanto for widespread use on genetically modified soybean and cotton crops.
Monsanto touted its dicamba-tolerant crop system - widely viewed as a successor to the popular Roundup - as the largest biotechnology launch in its history. But the bumpy rollout of the technology has led to millions acres of crop damage and damage to natural areas , thousands of farmer complaints and hundreds of lawsuits blaming the company for the problems.
The vast majority of soybean and cotton crops in the U.S. have already been planted, and the spraying of herbicides on those crops is happening now. About two-thirds of soybean farmers and the majority of cotton farmers plant dicamba-resistant seeds. Farmers have already purchased herbicides to accompany the seeds.
On Thursday though, soybean and cotton farmers, pesticide applicators and agriculture officials across the country scrambled for guidance after the decision, which means that many farmers no longer have a herbicide that will work to kill weeds in their fields. In some cases, the uncontrolled weeds may damage entire crop fields, costing farmers thousands of dollars.
"Honest to God, right now, I don't know what to tell people," said Jean Payne, president of the Illinois Fertilizer and Chemical Association, which includes pesticide applicators. "This is unprecedented. This is not something that has happened in my career, ever."
No fault of their own
Since 2017, the use of the herbicide dicamba has skyrocketed, after Monsanto, which was bought by Bayer in 2018, introduced new genetically modified soybean and cotton seeds that could be sprayed by dicamba. The company, along with BASF and Corteva, also made new versions of dicamba the EPA approved initially in 2016.
The need for the herbicide arose after many types of weeds became resistant to glyphosate, the active ingredient in Roundup and most popular weedkiller in the world.
But the new technology has come at a high cost.
Millions of acres of non-resistant crops and natural areas across the Midwest and South have been damaged by the herbicide moving off of where it was applied. Earlier this year, a federal jury in Missouri awarded $265 million to a peach farmer whose farm was damaged. Hundreds of similar lawsuits are pending.
A coalition of conservation groups sued the EPA over the registration.
The U.S. Ninth Circuit Court of Appeals ruled Wednesday that the EPA violated the law when it approved dicamba in 2018 because it did not properly consider the effect of the herbicide on other farmers and the natural environment.
The three-judge panel, which heard oral arguments in April, agreed with plaintiffs, finding that the EPA underestimated and ignored many risks that dicamba posed because of its widespread off-target movement. The court also ruled that the EPA should have considered the economic cost of the anti-competitve situation created by farmers being forced to adopt dicamba-resistant seeds in order to protect themselves from drift.
The court, expressing concern for farmers who rely on the technology, ruled that the EPA did not have “substantial evidence” to support its decision.
The EPA has yet to issue guidance on what the ruling means. 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.
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.
Tavium, another dicamba-based herbicide sold by Syngenta, is not affected by the decision; however, that herbicide is not available in large numbers.
In their ruling, federal judges indicated that it would mean an immediate ban of the herbicides.
“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,” Justice William Fletcher wrote in a decision on behalf of the three-judge panel.
Bayer spokeswoman Susan Luke said the company “strongly disagrees” with the ruling and is assessing its options. Bayer’s product website gives farmers updates on the situation as it evolves.
“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.
BASF spokeswoman Odessa Patricia Hines said the decision “has the potential to be devastating to tens of thousands of farmers.”
“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,” Hines said.
University of Illinois weed scientist Aaron Hager said in his 27-year career, nothing like this has ever happened.
“We’ve never dealt with anything like this before,” Hager said.
Farmers remove weeds in order to ensure their crops aren’t outcompeted by other plants. If a weed stays in the field, it can take much-needed nutrients and sunlight from crops. This could, in turn, lower the yield and lead to less money for farmers, Hager said.
Hager said the decision could leave many farmers without a chemical option to spray on their fields. Many weeds, including waterhemp and Palmer amaranth, have developed resistance to all other approved herbicides on soybeans in many places.
Hager said depending on the level of weed resistance, some farmers could lose very significant amounts of soybeans to the ultra-competitive weeds. Hager said this is similar to prior to the introduction of dicamba-resistant seeds. Some farmers in that time had to basically mow over fields that became infested with weeds.
Farmers are still able to do mechanized removal of weeds, through a cultivator or hoe, but for many farmers who have thousands of acres of crops, that can be time-consuming or cost large amounts of money.
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, which could lead to 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.
Right now is when many farmers are spraying their crops, he said.
"The timing on this thing couldn't be worse. It could not be worse timing," Thostenson said.
The American Soybean Association, which represents more than 300,000 soybean farmers said in an emailed statement it is disappointed by the decision.
“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," the statement said.
his coverage is supported with a grant from the Fund for Investigative Journalism.