Ninth Circuit Vacates EPA Approval of Dicamba Pesticide

(Credit: Bayer AG)

(CN) — The Ninth Circuit dealt a blow to chemical company Monsanto Wednesday when it vacated the Environmental Protection Agency’s approval of the controversial pesticide dicamba, saying the agency failed to properly assess the risks of its widespread chemical use.

A three-judge panel unanimously vacated the EPA approval of dicamba, a herbicide that has caused issues not so much because of its toxicity to humans, but because of its tendency to drift when applied, thereby damaging neighboring crops.

“A review of the record shows that the EPA substantially understated the risks that it acknowledged,” U.S. Circuit Judge William Fletcher wrote. “The review also shows that the EPA entirely failed to acknowledge other risks.”

Dicamba was developed by Monsanto, now called Bayer Crop Science, in response to the trend of several weeds developing resistance to glyphosate, sold commercially as Round-Up. Scientists at Monsanto genetically engineered soybean and cotton seeds that were resistant to dicamba. That way when farmers planted those seeds, they could be sure that when they sprayed dicamba, it would only kill plants without the genetically engineered resistance.

While this worked in an isolated field scenario, the problem comes when dicamba drifts into neighboring fields and damages the cash crops of farmers who are not using dicamba seeds.

This problem led Arkansas and Missouri to ban the use of dicamba in 2017. A peach farmer from Cape Girardeau, Missouri, won a multimillion-dollar lawsuit against Monsanto in January after a judge agreed the chemical decimated the farmer’s orchard.

In 2018, though, farmers planted approximately 56 million acres of dicamba-resistant cotton and soybean seeds across the United States. What followed was a litany of complaints from farmers who did not use such seeds but whose crops were hurt by dicamba drift.

On Wednesday, the Ninth Circuit said the EPA dramatically understated the damage done during the 2018 growing season.

“The EPA’s conclusion that complaints to state departments of agriculture of dicamba damage could have either under-reported or over-reported the actual amount of damage is not supported by substantial evidence,” Fletcher wrote. “The record clearly shows that complaints understated the amount of dicamba damage.”

The court also blamed the agency for failing to try and collect data that would paint an accurate picture of the damage the herbicide was doing to the agricultural landscape across the country.

“The EPA refused to quantify or estimate the amount of damage caused by OTT application of dicamba herbicides, or even to admit that there was any damage at all,” Fletcher wrote.

Some estimates indicate that 3.6 million acres of farmland were damaged by the application of dicamba in 2017 alone. The court notes that the agency had access to this data and this number, but in its decision only passingly referenced allegations of damage.

The court also faulted the agency for not considering what could occur should farmers not follow the label instructions, a consideration they are required to make by law. With dicamba, the label instructions were complex and onerous and grew increasingly so with each passing growing season as complaints from farmers increased.

During a webinar hosted by the EPA in 2018, one farmer told the agency:

“There doesn’t appear to be any way for an applicator to be 100% legal in their application.”

Farmers had to take into considerations like wind speed, time of day, precipitation forecasts and time from the planting of neighboring agricultural operations. A study conducted by Purdue University researchers said farmers in Indiana would have had a total of 47 hours during the entire season during which it would have been legal to spray dicamba.

Despite the extensive documentation of these issues, the EPA barely mentioned them during the approval process.

“The EPA nowhere acknowledged the evidence in the record 47 showing there had been substantial difficulty in complying with the mitigation requirements of earlier labels,” Fletcher wrote. “Nor did it acknowledge the likelihood that the additional mitigation requirements imposed by the 2018 label would increase the degree of non-compliance.”

The court also castigated the agency for failing to assess the economic costs of dicamba-resistant seeds, including monopoly issues as farmers feel increasingly compelled to purchase Monsanto’s seeds to avoid damage.

Finally, Fletcher and the other judges said the agency failed to consider the social costs due to the approval of the chemical.

‘It’s pitting neighbor against neighbor,” said University of Illinois weed scientist Aaron Hager in a 2018 edition of Progressive Farmer. “Farmers threatening other farmers. I’ve never seen this before over the use of technology.”

The court said the agency had ample evidence this was the case but chose to ignore it.

“The severe strain on social relations in farming communities where the new dicamba herbicides are being applied is a clear social cost, but the EPA did not identify and take into account this cost,” Fletcher wrote.

Fletcher was joined in the unanimous opinion by U.S. Circuit Judges Michael Hawkins and M. Margaret McKeown. All three were appointed by Bill Clinton.

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