The U.S. 9th Circuit Court of Appeals on Wednesday night halted the sale of three in-crop dicamba formulations, a decision of little consequence in Arkansas, where use of the herbicide already has been banned.
The court vacated pesticide registrations that had been awarded in 2018 by the U.S. Environmental Protection Agency for Bayer's XtendiMax with Vapor Grip, BASF's Engenia, and Corteva's FeXapan.
Arkansas' ban on in-crop use of dicamba took effect May 26, with exemptions for use around the home and on pastures. A few other states had cutoff dates set for later this month or other spray restrictions based on temperatures.
The court cited Arkansas in a few instances, particularly the number of complaints filed with the state Plant Board alleging damage to crops and other vegetation not tolerant of the herbicide.
The board, a division of the state Department of Agriculture, received about 1,400 complaints from 2016 through 2019, with most alleging damage to soybean and cotton varieties not dicamba tolerant but also to specialty crops of fruits and vegetables, backyard gardens, and ornamental shrubs and trees.
A three-judge panel of the 9th Circuit, in a ruling released about 7 p.m. Wednesday, said the EPA "substantially understated risks that it acknowledged" and "failed entirely to acknowledge other risks," including the "enormous social cost to farming communities."
As a result, the court said the EPA had violated the federal Insecticide, Fungicide, and Rodenticide Act. It ordered an immediate halt to the nationwide sale and use of the three dicamba formulations. (The ruling didn't cite Syngenta's dicamba formulation, Tavium, which didn't receive its EPA registration until April 2019).
"We are aware of the practical effects of our decision," the court said. "Among other things, we are aware of the adverse impact on growers who have already purchased [dicamba tolerant] soybean and cotton seeds and dicamba products for this year's growing season."
Near the end of its 56-page ruling, the court added, "We acknowledge the difficulties these growers may have in finding effective and legal herbicides to protect [dicamba tolerant] crops ...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 ruling can be appealed, or a request can be filed with the U.S. Supreme Court to stay the ruling.
As pigweed in Arkansas and "super weeds" in other states developed resistance to glyphosate -- commonly known as Roundup -- and other herbicides, Monsanto genetically modified cottonseed and soybeans t0 be tolerant of dicamba. It also developed new formulations of dicamba designed to be less susceptible to drift and other forms of off-target movement.
Monsanto, now owned by Bayer, released the dicamba-tolerant cotton in 2015 and dicamba-tolerant soybeans in 2016. It didn't get EPA approval for its new dicamba until late 2016, for use in the 2017 crop season.
The ruling against the EPA comes just three months after a federal court jury awarded $265 million in punitive and compensatory damages to Missouri's largest peach grower, who sued Monsanto and BASF. The companies said they will appeal the Missouri verdict.
The EPA didn't adequately look into complaints of dicamba damage or heed warnings, the court said. Among other warnings, the court noted a letter to the EPA from Ford Baldwin, a crop consultant and former weed scientist with the University of Arkansas System's Agriculture Division.
"Once again in 2018, large acreages of non-dicamba-tolerant soybeans in eastern Arkansas are affected by this herbicide as well as many vegetables," Baldwin, of Austin in Lonoke County, wrote Reuben Baris, the acting chief of the EPA's herbicide branch, on June 25, 2018. "In addition, most trees in the countryside and towns are cupping and even dying following multiple years of exposure."
The court said Baris told the others in the agency in 2017 of his concerns about dicamba damage and that more than 3.6 million acres of soybeans had been damaged nationwide. Baris now works for Corteva.
The court said the EPA "entirely failed to acknowledge" evidence of:
• The likelihood that "increasingly restrictive" instructions on dicamba's use would not, or could not, be followed by farmers.
• The "substantial risk that the registrations would have anti-competitive economic effects in the soybean and cotton industries" as more farmers planted dicamba-tolerant crops, in part as a protective measure because their neighbors were planting those crops and using dicamba.
• "The risk that [in-crop] dicamba use would tear the social fabric of farming communities."
As an example, the court cited the 2016 shooting death of Mike Wallace, an Arkansas farmer who got into an argument with a farmer he suspected of damaging his crops with illegal applications of dicamba. Curtis Allan Jones was convicted by a Mississippi County jury of second-degree murder and sentenced to 24 years in prison. The Arkansas Court of Appeals upheld Jones' conviction in August.
"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," the court said.
The lawsuit decided Wednesday was filed against the EPA by a coalition of farming and environmental groups -- the National Family Farm Coalition, the Center for Food Safety, the Center for Biological Diversity and the Pesticide Action Network. They alleged the EPA violated the federal pesticide law, as well as the federal Endangered Species Act.
The Arkansas Democrat Gazette reported in November 2018 that EPA scientists had recommended 443-foot buffers between fields where dicamba is sprayed and areas where there may be endangered species. EPA administrators set those buffers instead at 57 feet.
The court said, because of its findings on the pesticide law's requirements, it did not need to address the claims regarding the Endangered Species Act.
The EPA gave the dicamba formulations by Monsanto and other companies only "conditional" two-year registrations in 2016. In October 2018, the EPA renewed the registrations through the 2020 crop season and set other restrictions.
Bayer said Thursday on its website that it was reviewing its options and awaiting "direction from the EPA on actions it may take." Bayer was identified as a "respondent-intervenor" in the case.
BASF said it was reviewing its options, calling the ruling "unprecedented" with "the potential to be devastating to tens of thousands of farmers."
The EPA, which also said it was reviewing the court's ruling, was to announce later this year whether it would renew the dicamba products' registrations.
The case is 19-70115, in the 9th U.S. Circuit Court of Appeals.
Business on 06/05/2020