Bayer has reached a $400 million settlement with farmers whose crops have been damaged by drift from the herbicide dicamba, the company announced Wednesday. The settlement was announced alongside the company’s $10 billion settlement over claims that the herbicide Roundup causes cancer.
The two settlements, along with a third settlement over PCBs, help Bayer resolve legal disputes that have been hanging over the company’s head since it bought agribusiness giant Monsanto in 2018.
Dicamba, a volatile weed killer that has been used since the 1960s, has been blamed for damage to millions of acres of crops since Monsanto introduced new genetically engineered soybean and cotton seeds resistant to the herbicide beginning in 2015. The cropping system, which also included new versions of dicamba that were alleged to be less volatile than previous versions that were sold starting in the 2017 growing season, was designed to be the successor to Roundup, which is becoming increasingly less effective as more weeds become resistant to its active ingredient, glyphosate. The dicamba-tolerant crops were touted as the largest biotechnology launch in the history of Monsanto. Damage has continued every growing season.
Bayer said in a news release that they expect BASF, which also makes a low-volatility dicamba herbicide and was a party to the lawsuits, to contribute to the settlement. The companies have blamed other factors for the damage, including farmers making illegal applications, older versions of dicamba, and disease.
Earlier this month, the U.S. Ninth Circuit Court of Appeals banned dicamba for over the top use on cotton and soybeans, after finding that the U.S. Environmental Protection Agency ignored risks posed by the weed killer to other farmers and the natural environment. The EPA said farmers have until July 31 to spray all existing stocks of dicamba.
The company agreed to pay up to $300 million to soybean producers and an additional amount to specialty farmers whose crops have been damaged, according to the release. The settlement also includes legal fees, litigation expenses, settlement administration fees, and is valued at up to $400 million. The settlement covers all claims in a multi-district litigation, which includes farmers in several states, in the U.S. District Court for the Eastern District of Missouri for crop years 2015 through 2020.
The settlement does not just cover farmers who have filed a lawsuit; in the coming months, a process will be created for any soybean farmer who has suffered yield loss due to dicamba drift, said Paul Lesko, an attorney with Peiffer, Wolf, Carr, Kane & Conway, who was one of the firms involved in the litigation.
Farmers who have claims will have to submit evidence that they suffered dicamba damage in order to collect money, Bayer said in the news release.
Earlier this year, a federal jury in Cape Girardeau, Missouri, awarded $265 million to a Missouri peach farmer who alleged damage to their crops. Bayer appealed that decision, which included $15 million in actual damages and $250 million in punitive damages, and that case is not included in this settlement.
Documents presented in court in that case showed that Monsanto expected thousands of drift complaints from farmers, limited its own employees in testing the herbicide in order to get a smooth approval from the EPA and expected the herbicide’s propensity to damage its competitors’ crops to lead to higher sales of its dicamba-tolerant soybean and cotton seeds.
The settlement largely focuses on soybean farmers, said Don Downing, an attorney with St. Louis-based law firm Gray, Ritter & Graham and chairman of the Plaintiffs’ Executive Committee of attorneys representing the farmers. Experts will be retained in the case to help show how much money each farmer should get.
Right now, it’s hard to know how much damage has been done to farmers, Downing said. In 2017, University of Missouri professor Kevin Bradley estimated that at least 3.6 million acres of soybeans were damaged across the country. If $300 million is not enough for all farmers, they can continue with litigation, Downing said.
“There’s really no definitive answer to how much yield loss has been suffered by soybean farmers across the country,” Downing said.
Bayer will be reaching out to specialty farmers who have been damaged individually, Downing said. Many of those have been identified through lawyers involved in the litigation process and their settlements are included in the $400 million total. Still, some may not have yet been identified, he said.
Downing said that farmers that are continuing to be damaged by dicamba this growing season should take all precautions to document any dicamba damage through photographs, reports to state agencies and yield records.
Downing said the settlement agreement was in the works prior to the recent federal court decision banning dicamba. Bayer has pledged to work to get XtendiMax, its dicamba-based herbicide, re-approved for the 2021 growing season.
“Bayer stands strongly behind the safety and utility of its XtendiMax herbicide with VaporGrip technology and continues to enhance training and education efforts to help ensure growers use these products successfully,” Bayer said in a news release. “The company is settling the pending dicamba drift cases to be able to focus on the needs of its customers.”