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Administrator Andrew Wheeler’s Environmental Protection Agency has been eviscerated in a brutal takedown by the U.S. Court of Appeals for the Ninth Circuit for its lack of oversight in registering the controversial herbicide dicamba.

The ruling immediately bans selling and usage of three particular formulations of dicamba.

In its June 3 opinion the court wrote:

“The EPA made multiple errors in granting the conditional registrations…the EPA substantially understated the risks  it acknowledged, and it entirely failed to acknowledge other risks. We conclude that the “fundamental flaws” in the EPA’s analysis are so substantial that it is exceedingly “unlikely that the same rule would be adopted on remand.”

In other words, EPA’s lack of competence in registering (essentially reauthorizing formulations of dicamba including Bayer’s XtendiMax, Corteva’s DuPont FeXapan Herbicide, and BASF’s Engenia Herbicide for commercial use) is so great that the court said its decision is final...and nothing EPA could say going forward would change its decision.

Specifically, EPA did not properly consider the effect of the herbicide on other farmers and the natural environment and, as the record shows, took Monsanto’s internal research at its word that dicamba was safe without appropriate oversight (Bayer purchased Monsanto in 2016),

Let’s break down the court’s point by point EPA meltdown.

To comprehend the court’s reasoning you have to understand that Monsanto and EPA were practically partners in crime back in 2016 in getting XtendiMax into farmer’s hands.  Monsanto presented internal studies in a White(wash?) paper to EPA without independent scientific verification that XtendiMax would not drift much – a huge downside to dicamba which can kill or damage almost every plant and tree it touches.  In registering XtendiMax the EPA did little objective investigative oversight and essentially gave XtendiMax a rubber stamp.

We soon learned that XtendiMax did not stay where it was sprayed.  The University of Missouri weed scientists estimated that 4 percent of all U.S. acres planted to soybeans were damaged by dicamba drift in 2017.

Monsanto claimed it wasn’t an inherent flaw in XtendiMax but farmers failing to follow instructions that included application prohibited during wind speeds above 15 miles an hour, prohibitive during temperature inversions, prohibitive if rain was expected within 24 hours, and prohibitive if spraying equipment traveled more than 15 miles per hour.  Additionally, farmers had to provide a buffer zone of at least 110 feet between the last treated crop row and the nearest downwind edge of the field was required; and a maximum sprayer boom height of twenty-four inches above the crop canopy or weeds.

When registration for XtendiMax came up again in 2018 Monsanto submitted another White(wash) paper to E-P-A with five more field trials which the company claimed its original 2016 assessment of XtendiMax was safe...we pinky finger swear.

Monsanto also offered up further label restrictions for the 2018 growing season including: application prohibitive if wind speeds were less than three or greater than ten miles an hour, application permitted only between sunrise and sunset, and application could only be done by certified applicators or people working under their supervision.  EPA went along with the recommendation without serious scientific review.

By then, however, the nation was in an uproar over the failure of dicamba to stay where it was sprayed and the massive damage it was causing.  The court’s ruling has a four page summery of many of the complaints. The court was less than impressed with EPA oversight, saying “the EPA refused to estimate the amount of dicamba damage, characterizing such damage as “potential” and“ alleged,” when indisputable evidence said otherwise.

EPA Administrator Andrew Wheeler essentially shut his eyes, put his fingers in his ears, and for all practical purposes told everyone don’t believe your lying eyes on dicamba drift.  Internal EPA documents reported out in 2018 by the Arkansas Democrat Gazette showed Wheeler ignored his own scientists who were providing ideas to increase dicamba safety.

In the aftermath of the 2018 growing season, dicamba labels were changed yet again.  Dicamba application for 2019 required dicamba application only between one hour after sunrise and two hours before sunset (rather than any time between sunrise and sunset,  only two over the top applications were permitted per crop for soybeans, with the last application made no later than forty-five days after planting, only two OTT applications were permitted per crop for cotton, with the last application made no later than sixty days after planting, an omnidirectional, in-field fifty-seven-foot buffer required in certain counties to protect listed plant species; and applications could be made only by certified applicators.

In case you’re keeping count that’s three labels in three growing seasons.   In fact, reading between the lines the court noted the complexities of dicamba application have become so great that 100 percent legal application is nearly impossible.

Despite all the problems with dicamba on October 31, 2018 EPA granted registration for XtendiMax for an additional two years and followed with dicamba approvals for Corteva and BASF.

But the court had seen enough.  The 9th Circuit’s stunning ruling has left agriculture grasping for answers.

In a written statement Wheeler noted:

EPA has been overwhelmed with letters and calls from farmers nationwide since the Court issued its opinion, and these testimonies cite the devastation of this decision on their crops and the threat to America’s food supply.  EPA is assessing all avenues to mitigate the impact of the Court’s decision on farmers.” 

Out in the Heartland some states are choosing to ignore the court ruling pending further information from EPA.  The Iowa Department of Agriculture and Land Stewardship says it will allow the sale and application of dicamba to continue and will not take enforcement action ‘till told by EPA otherwise.

EPA announced late Monday night that it would allow dicamba to be sprayed until July 31. Of course, that’s in violation of the court order. 

Meanwhile Bayer says it will seek a new registration of dicamba for the 2021 season.

In my way of thinking, current dicamba formulations should only be used pre-emergence  Anything else begs for trouble.  Rest assured Big Ag won’t be going down that pathway and we’ll be back in the courts before the 2021 growing season.

About Dave Dickey

Dave Dickey

Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for the Midwest Center covers agriculture and related issues including politics, government, environment and labor. His opinions are his own and do not reflect the Midwest Center for Investigative Reporting. Email him at dave.dickey@investigatemidwest.org.