In apparent rejection of federal court, EPA allows continued dicamba use

But the herbicide has damaged millions of acres of non-resistant crops and natural areas. Thousands of farmers have filed complaints about the damage, and Bayer, which bought Monsanto in 2018, faces hundreds of lawsuits over the herbicide. Earlier this year, a federal jury ruled Bayer and BASF, which makes a version of the herbicide, must pay a Missouri peach farmer $265 million for damage incurred on his farm.

About two-third of U.S. soybean crops and more than half of cotton crops are dicamba-tolerant. 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, expressed concerns for farmers who had planted the crops, but said the EPA created the situation by failing to do a proper analysis. The decision applied to versions of dicamba made by Bayer, BASF and Corteva.

“We acknowledge the difficulties these growers may have in finding effective and legal herbicides to protect their DT crops if we grant vacatur. 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 guidance from the EPA came after almost a week of silence, following the Ninth Circuit Court’s decision. In the days following the decision, states asked the EPA for guidance and made their own decisions. At least 15 states decided to continue to allow the use of dicamba.

The Illinois Department of Agriculture, which oversees pesticides in the nation’s top producing soybean state, said the court ruling “clearly calls for the stop of use, sale and distribution” of the herbicides. South Dakota also banned the herbicide.

In a statement Friday, U.S. Secretary of Agriculture Sonny Perdue asked the EPA to do what it could to make the herbicide available this growing season. Wheeler also said farmers need the herbicide. 

“At the height of the growing season, the Court’s decision has threatened the livelihood of our nation’s farmers and the global food supply,” Wheeler said in a statement. 

Lori Ann Burd, environmental health program director for the Center for Biological Diversity, which also challenged the registration, said the EPA created the timing issue, not the conservation groups.

“This timing is entirely manufactured by the EPA. We did everything we could to expedite this case,” Burd said.

The EPA originally approved XtendiMax, Bayer’s version of dicamba, in 2016 for two years. The plaintiffs in this case challenged that decision, but the Ninth Circuit failed to make a decision prior to the EPA re-approving XtendiMax for two more years in October 2018. Because of that decision, the prior lawsuit was ruled to be moot, and the conservation groups had to re-file a lawsuit challenging the 2018 decision.

In this case, the EPA took months to produce the administrative record and asked for more time for briefing on multiple occasions, Burd said. The court also was fully briefed on the impacts of banning the herbicide mid-season, but chose to do so anyway, she pointed out.

Bayer praised the EPA’s decision on Monday evening. Last week, Bayer said it is working to get dicamba re-registered for the 2021 growing season.

“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.

Luke, on behalf of Bayer, did not answer questions on how the company would proceed and whether the company would engage in a buyback program from farmers, saying the company would like provide more guidance in the coming days.

“Absent this (EPA) guidance, we had no way of addressing the kind of decisions that are reflected in your questions,” Luke wrote in an email.

Center for Biological Diversity Senior Attorney Stephanie Parent, who served as co-counsel in the case, issued a statement on Monday night: “In the reckless, lawless logic of the Trump EPA, if you have DDT you already purchased in your barn, you can legally use it. That’s absurd. We will ask the court to enforce its clear order instructing farmers not to use dicamba on their crops, period.”