A group of farming and conservation organizations have challenged a recent U.S. Environmental Protection Agency decision to allow the continued spraying of the herbicide dicamba through July 31, arguing that a recent federal court decision should have immediately banned the weed killer.
The group's filing, issued late Thursday night, asked the U.S. Ninth Circuit Court of Appeals to hold EPA Administrator Andrew Wheeler in contempt for refusing to abide by the order. The EPA issued the guidance on Monday, less than a week after the court vacated the registration of dicamba herbicides made by Bayer, BASF and Corteva.
“Extraordinary events require extraordinary actions,” the filing said. “EPA has defied this Court’s decision, requiring Petitioners’ emergency motion.”
The court ruled the EPA did not have enough evidence to support its approval of the registrations and underestimated and ignored many risks that the weed killer posed on other farmers and natural areas.
Farming and conservation organizations - the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity and Pesticide Action Network - argued the ruling should have immediately banned all use of dicamba. The groups filed the lawsuit that led to the court’s ruling that the EPA unlawfully approved the herbicides.
George Kimbrell, legal director at the Center for Food Safety, said in a statement that the Trump EPA “thinks it can blow off a federal court ruling.”
“It’s mind-boggling to see the EPA blatantly ignore a court ruling, especially one that provides such important protections for farmers and the environment,” said Stephanie Parent, a senior attorney at the Center for Biological Diversity, in a statement.
Dicamba, a volatile herbicide that has been around since the 1960s, 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. Bayer purchased Monsanto in 2018.
Bayer praised the EPA’s decision on Monday.
“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.
New versions of the herbicide were designed to be less mobile, but off-target movement of those herbicides has been blamed for damage to millions of acres of crops and natural areas since they were introduced beginning in 2017.
Dicamba-tolerant crops cover more than 60 million acres across the Midwest and South, including about two-third of soybeans and more than half of cotton plants. 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, acknowledged the difficulty the ruling would place on farmers.
”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 recent decision by the EPA would likely allow dicamba to be sprayed through the end of the growing season. Many states which have seen significant crop damage have implemented cut-off dates after which dicamba cannot be sprayed which are in June. Plaintiffs pointed out in the filing that the extension goes through the rest of the growing season.
“EPA called this a ‘cancellation’ order but it was actually a ‘continuing uses despite vacatur’ order,” the filing said.
The battle over dicamba’s registration has been ongoing since it was approved in late 2016.
The EPA’s original approval was for two years. The groups filed a challenge in early 2017, but had to re-work the challenge after the EPA changed the label following the 2017 growing season after widespread damage.
The lawsuit was then mooted out before the Ninth Circuit could make a decision by the EPA making a new registration in 2018 for two more years. The current registration was set to expire later this year, and Bayer has said it will seek a new registration for the 2021 growing season.
“It cannot be so easy to circumvent this Court’s order. EPA cannot get away with allowing the spraying of 16 million more pounds of dicamba and resulting damage to millions of acres, as well as significant risks to hundreds of endangered species,” the filing said. “Something else is at stake too: the rule of law. The Court must act to prevent injustice and uphold the integrity of the judicial process.”
This coverage is supported with a grant from the Fund for Investigative Journalism.