On Wednesday, the U.S. Court of Appeals for the Ninth Circuit ruled in favor of farmers and conservationists in a dispute over Bayer/Monsanto’s dicamba pesticide. The 56-page opinion held the Trump administration’s 2018 registration of that pesticide and related ones to be unlawful, and disallowed it. Over 25 million pounds of the dicamba was set to be sprayed again this summer using the now-unlawful pesticides.
“Today’s decision is a massive win for farmers and the environment,” said George Kimbrell of the Center for Food Safety, lead counsel in the case. “It is good to be reminded that corporations like Monsanto and the Trump Administration cannot escape the rule of law, particularly at a time of crisis like this. Their day of reckoning has arrived.”
The case involved three formulations of the pesticide dicamba – Monsanto’s XtendiMax, Corteva’s FeXapan, and BASF’s Engenia – that EPA first registered for the 2017 season for “new uses” on Monsanto’s genetically-engineered, dicamba-resistant soybeans and cotton. Though introduced in the 1960s, dicamba had been little-used due to its propensity to volatilize and drift, damaging neighbors’ crops. In approving the new uses, EPA defied numerous warnings that the pesticide would cause far more widespread drift damage than ever before, relying entirely on dubious industry studies and complex usage restrictions to supposedly “eliminate” any damage to crops from drift.
What ensued was historical — from 2017 to 2019 farmers reported thousands of dicamba drift episodes causing damage to millions of acres of soybeans as well as vegetables, fruit trees, gardens, and residential trees.
In ruling the pesticide approval unlawful, the opinion cited “enormous and unprecedented damage” caused by dicamba in the last few years, damage that has “torn apart the social fabric of many farming communities.”
“For the thousands of farmers whose fields were damaged or destroyed by dicamba drift despite our warnings, the National Family Farm Coalition is pleased with today’s ruling,” said National Family Farm Coalition president Jim Goodman, who is also a retired dairy farmer.
The court found that EPA “refused to estimate the amount of dicamba damage” by characterizing it as ‘potential’ and ‘alleged,’ when in fact the record showed that “dicamba had caused substantial and undisputed damage.” Similarly, EPA ignored the consensus views of scientists, farmers, and even EPA officials that formal complaints of dicamba damage understated actual damage, solely because Monsanto had claimed the contrary.
The court’s ruling was far-reaching, touching on risks that EPA entirely ignored and that are seldom raised in cases on pesticide law. For instance, the judges ruled that EPA had ignored the substantial costs imposed on soybean farmers who purchased Monsanto’s dicamba-resistant seed solely to preserve their crops from dicamba drift damage – an “anti-competitive economic effect” of the registrations.
“This is a massive victory that will protect people and wildlife from uses of a highly toxic pesticide that never should’ve been approved by the EPA,” said Lori Ann Burd, director of the Center for Biological Diversity’s environmental health program. “The fact that the Trump EPA approved these uses of dicamba despite its well-documented record of damaging millions of acres of farmland, tree groves and gardens highlights how tightly the pesticide industry controls EPA’s pesticide-approval process. But this ruling is a powerful rejection of their lawlessness.”
Also stunning was the court’s acknowledgement that these uses of dicamba “tear the social fabric of farming communities” by engendering strife among those spraying dicamba and those suffering drift damage. The judges noted that EPA had ignored this outcome, despite the fact that federal pesticide law requires an accounting of the “social costs” of a pesticide’s use as well as health and environmental harms. The court singled out a gunshot death involving such a dicamba dispute.
Finally, the court chastised EPA for piling so many restrictions on the dicamba labels, in a vain attempt to reduce drift, that even highly trained pesticide applicators found it virtually impossible to follow all of them.
“Justice has finally prevailed,” said Marcia Ishii-Eiteman, senior scientist at Pesticide Action Network. “EPA, Bayer and Corteva knew all along that the highly drift-prone herbicide, dicamba, would cause grave harm to farmers, their livelihoods, crops, surrounding rural communities and landscapes. Unfortunately, we have already seen three seasons of devastation that could have been avoided had EPA done its job.”
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