By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

The United States Court of Appeals for the Ninth Circuit on June 3 struck down the EPA’s approval of XtendiMax, Engenia, and FeXapan— dicamba-based herbicides sold by  Bayer (as a consequence of its acquiisition of Monsanto, which produced  these products), BASF, and Corteva. (The complete 56-page opinion is appended below).

As dicamba drifts – it does not stay where it is applied–  and so damages nearby crops, the court ordered use of the herbicide to cease. This means that farmers cannot use the herbicide, beginning immediately with the current growing season, which is already underway. According to Common Dreams:

“The EPA and Monsanto urge us, if we conclude that substantial evidence does not support the 2018 conditional registrations, to remand without vacatur, leaving the conditional registrations in effect,” the court said. “We decline to do so.”

Last Monday, as announced in  EPA Offers Clarity to Farmers in Light of Recent Court Vacatur of Dicamba Registrations. the agency issued a cancellation order, which

outlines limited and specific circumstances under which existing stocks of the three affected dicamba products can be used for a limited period of time. EPA’s order will advance protection of public health and the environment by ensuring use of existing stocks follows important application procedures.

Lawyers for plaintffs, which include the Center for Food Safety and the Center for Biological Diversity, immediately struck back, as Progressive Farmer notes:

An emergency motion was filed late Thursday night, June 11, asking the Ninth Circuit Court to halt all dicamba use and hold the EPA in contempt of court for its decision to allow farmers to use existing stocks of three dicamba herbicides.

On June 12, the court’s panel of judges responded and ordered EPA to respond to the emergency motion by 5 p.m. on June 16.

Until then, EPA’s order still stands. But if the judges ultimately rule against EPA, the motion could once again leave farmers without many dicamba herbicide options to use over millions of acres of dicamba-tolerant soybean and cotton this summer.

The Glyphosate Link

I’ve written about the glyphosate litigation (see here, here, here), here, and here, but was unaware of the dicamba connection. In those lawsuits, various plaintiffs allege that glphosate has caused their cancers; click on the links for more details.

From the June 3 opinion:

American farmers have been using dicamba, a chemical herbicide, to combat
weeds for more than fifty years. Dicamba is an effective weed killer, but its
toxicity is not limited to weeds. It can kill many desirable broadleaf plants, bushes,
and trees. It also has a well-known drawback. Dicamba is volatile, moving easily
off a field onto which it has been sprayed. It can drift if the wind blows during
application; it can drift if applied during temperature inversions; it can drift after
application when it volatilizes, or turns to a vapor, during hot weather. As a result
of its toxicity and its tendency to drift, dicamba had historically been used to clear
fields, either before crops were planted or before newly planted crops emerged
from the soil. This changed in 2017.

By the early 2000s, many weeds had developed a resistance to the widely
used herbicide glyphosate, the main ingredient in Roundup brand-name products
sold by the Monsanto Company (“Monsanto”). In response, Monsanto developed
and patented genes that allowed soybean and cotton crops to tolerate dicamba.
Concurrently, Monsanto and two other herbicide manufacturers reformulated
dicamba herbicides in an attempt to make dicamba less volatile and therefore
usable during the growing season (p. 2).

Contempt of Court for EPA Administrator Andrew Wheeler?

Plaintiffs’ attorneys will press to sanction the EPA for its attempt to end-run the clear June 3 opinion. Over to Progressive Farmer:

The plaintiffs asked the judges to hold EPA administrator Andrew Wheeler in contempt of court.

“EPA and Administrator Wheeler should be found in contempt for not just failing to substantially comply with, but blatantly and intentionally violating the entirety of the Court’s Order,” they wrote.

Yet nor is the EPA backing down. As Progressive Farmer reports:

EPA released a statement to DTN this morning, defending its order.

“EPA’s order — which protects the livelihood of our nation’s farmers and the global food supply — is consistent with the Agency’s authority and with the Ninth Circuit Court of Appeal’s June 3, 2020 mandate,” the agency said in an emailed statement to DTN. “EPA stands by its order and will vigorously defend against attempts to limit the agency’s authority to provide clarity and certainty to farmers.”

Dicamba registrant Bayer, which is listed as a defendant-intervenor in the original lawsuit, vowed to fight the emergency motion in court.

“We are reviewing the filing in detail, but do not believe it is proper or well-founded and we are preparing our responsive filing,” a Bayer spokesperson said in an emailed statement. “During this critical time, farmers and commercial applicators can continue to use low volatility dicamba herbicides per the U.S. EPA’s current order.”

The judges did not grant Bayer an opportunity to respond to the plaintiff’s emergency motion, only EPA.

Both Corteva Agriscience, which markets the FeXapan herbicide, and BASF, which owns Engenia, announced that that they have filed motions to intervene in the lawsuit. Both companies noted that they only became aware that their dicamba products were implicated in the lawsuit when the Ninth Circuit vacated all three registrations on June 3.

Trump EPA During the Time of COVID-19

The latest shenanigans well fit within what the Trump administration has been trying to get away. Especailly now,  I must mention in passing its use of  the excuse of the COVID-19 pandemic to shutter its EPA enforcement efforts (as well as advance its policy agenda across several realms). Several state attorney generals callied out this effort, by filing legal actions challenging the EPA’s blanket waiver of enforcing air and water pollution rules. In fact last week, as Waste Dive reports:

• Nine states are pushing back on the U.S. EPA’s moves to relax environmental oversight due to the new coronavirus pandemic. Attorneys general for New York, California, Maryland, Illinois, Michigan, Minnesota, Vermont, Oregon, and Virginia raised the issue in a brief sent June 8 to the U.S. District Court for the Southern District of New York.

• Those states are asking the court to issue a preliminary injunction that would halt the EPA’s “enforcement discretion” policy, announced in March. The states filed a lawsuit in May arguing the policy is too expansive and vague. Spokespersons for the Maryland and New York attorneys general told Waste Dive this new brief supports the same case.

EPA Stubbornness Hurts Farmers

As to the dicamba issue, farmers are obvious losers on EPA dicamba policy. The legal situation is uncertain. So, what should they do? This is a particularly difficult question if they have already purchased dicamba but not yet applied what they have bought.

A short Sioux City Journal account minces no words:

A federal court has come down hard on the Environmental Protection Agency for allowing farmers to continue spraying the weed killer dicamba on crops even though it was obvious the chemical was toxic to nonresistant crops. The immediate ban imposed by the court on continued dicamba spraying seems certain to deal a catastrophic blow to an agriculture industry that has grown heavily dependent on the herbicide.

This is yet another Trump administration mess that should, by now, have farmers questioning why the president deserves any continued support. President Donald Trump launched a disastrous trade war with China that destroyed their biggest export market. His bungled response to the pandemic further evaporated markets and put a stranglehold on produce-distribution networks.

The EPA did nothing to prepare farmers for a ruling that appeared almost certain from the beginning to go against dicamba’s continued use. The evidence was overwhelming, as the unanimous ruling by the Ninth Circuit Court of Appeals made clear, that the herbicide tends to evaporate under certain conditions or drift in wind and settle onto adjacent fields. The ruling quoted a study by professor Kevin Bradley of the University of Missouri, that by the end of 2017, 2,708 formal complaints of dicamba-caused damage were being investigated by state departments of agriculture. The study estimated that approximately 3.6 million acres of soybeans in 24 states were damaged by dicamba drift.

Dicamba’s developer, Creve Coeur-based Monsanto, and parent company Bayer have long tried to shift blame, saying farmers failed to follow instructions. Damaged crops were the result of other factors unrelated to dicamba. It always seems to be someone else’s fault. But the 56-page federal court ruling left no doubt that the herbicide is to blame.

The EPA’s decision in 2018 to extend approval of dicamba’s use for another two years “substantially understated” multiple risks recognized by the agency, and “also entirely failed to acknowledge” others, the ruling said.

—

The EPA, defying the June 3 ruling, told farmers this week they could continue spraying until July 31 to use up their existing stock, but supplies purchased after June 3 may not be used.

It was EPA that set farmers up for the prospect of worse heartbreak and financial loss. Farmers would be smart to abide by the court ruling rather than place more faith in a defiant Trump administration with a history of creating far more problems than it solves for American agriculture.

The Bottom Line

it seems the U.S. courts stilll may issue stern environmental opinions. I’m curious what the Ninth Circuit will now do with an EPA that has so clearly sought to dodge its opinon.

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