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Daily News Blog

17
Jun

Court Victory on Three Dicamba Weed Killers Underscores the Need to Reform Pesticide Law

(Beyond Pesticides, June 17, 2020) The June 3 decision in a high-profile “dicamba case” — against the U.S. Environmental Protection Agency (EPA) and for the plaintiffs, a coalition of conservation groups — was huge news in environmental advocacy, agriculture, and agrochemical circles. The federal Ninth Circuit Court of Appeals vacated EPA’s 2018 conditional registration of three dicamba weed killer products for use on an estimated 60 million acres of DT (dicamba-tolerant through genetic modification/engineering) soybeans and cotton. There is, however, a related issue that accompanies this and many other pesticide cases. When EPA decides to cancel or otherwise proscribe use of a pesticide (usually as a result of its demonstrated toxicity and/or damage during litigation), the agency will often allow pesticide manufacturers to continue to sell off “existing stocks” of a pesticide, or growers and applicators to continue to use whatever stock they have or can procure. Beyond Pesticides has opposed, covered, and litigated against this practice. To greenlight predictable harm is a violation of any recognized moral code, never mind of the agency’s mission — “to protect human health and the environment.” According to Beyond Pesticides, EPA should never permit continued use of a dangerous pesticide once that compound’s registration under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) has been canceled.

Dicamba is a particularly problematic herbicide, given its propensity to drift, the widespread damage it causes to non-target flora, and industry’s intensive marketing of various product iterations. Added to that list are its impacts on human health: carcinogenicity, neurotoxicity, hepatic and renal damage, and developmental effects, among others. Additionally, it is toxic to birds, fish, and other aquatic organisms, which is especially relevant because it is found in groundwater, particularly in the Pacific Northwest.

In recent years, growers have become more animated about damage to their crops from dicamba drift. Dicamba used to be used primarily as a pre-emergent treatment, but manufacturers have increasingly recommended “over the top” (OTT) applications — those made after plants are growing. (OTT applications of the three dicamba products are those to which the decision in the subject Ninth Circuit Court case applies.) In addition, as resistance to glyphosate herbicides—which were developed and marketed to work with genetically engineered (GE) seeds—grows, industry has promoted the use of dicamba plus glyphosate in attempt to knock down those resistant weeds. In 2015, for example, Monsanto began selling [with EPA approval] another iteration of its GE soybean seed, which is tolerant of both compounds. But this seed-plus-double-herbicide protocol has exacerbated the drift problem and resultant plant damage.

The coalition of organizations — the National Family Farm Coalition, Center For Food Safety, Center For Biological Diversity, and Pesticide Action Network North America — brought this suit in 2018, after EPA had issued a second conditional registration of three dicamba products. Plaintiffs in the recent case sought the court’s review of the basis of the 2018 conditional registration, arguing that it violated both the Endangered Species Act and FIFRA (under which authority pesticides are registered). Judge William Fletcher, writing for the three-judge panel, wrote, “We hold that the EPA’s October 31, 2018, decision, and the conditional new-use registrations of XtendiMax, Engenia, and FeXapan for use on DT [dicamba tolerant] soybean and cotton that are premised on that decision, violate FIFRA. . . . We therefore vacate the EPA’s October 31, 2018, registration decision and the three registrations premised on that decision. . . . [W]e do not reach the question whether the registration decision also violates the Endangered Species Act.”

A few days after the Ninth Circuit decision, EPA issued its 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.” The order identifies those circumstances as: “(1) Distribution or sale by any person is generally prohibited except for ensuring proper disposal or return to the registrant; and (2) Growers and commercial applicators may use existing stocks that were in their possession on June 3, 2020, the effective date of the Court decision. Such use must be consistent with the product’s previously approved label, and may not continue after July 31, 2020.” This allows continued use through this growing season.

As the Environmental Health Network notes, “In nearly all prior cases revoking federal registrations, the Environmental Protection Agency and courts have left enough wiggle room in orders to allow farmers to apply ‘soon to be banned’ pesticides in the current growing season, especially if products had already been purchased by farmers.”

This set of EPA proscriptions is more limiting than the agency often sets out in such instances. Some states have established more-stringent rules; Minnesota, for example, has set the clock on use of remaining stocks to expire on June 20, and Illinois and South Dakota moved to suspend all dicamba use and sale immediately. Other state agriculture departments have rushed to emphasize that sale, distribution, and use of all other dicamba products remains legal, absent a label cancellation by EPA.

Beyond Pesticides executive director Jay Feldman describes the recurrent “existing stocks” problem: “Cancellation of a pesticide registration has rarely been interpreted by EPA to mean that the stocks of the canceled pesticide already ‘in the pipeline’ are necessarily proscribed. The agency will often allow the sell-off of remaining stocks that are already in the supply chain, and/or continued use by growers and applicators. This can mean that farmers may already have planted the season’s crops and will use up whatever stocks of the pesticide — now canceled, and usually because of egregious toxicity and harm — they have or can get their hands on.” EPA estimates that there are approximately four million gallons of the three OTT dicamba products — Bayer’s XtendiMax, BASF’s Engenia, and Corteva Agriscience’s FeXapan — in the supply pipeline.

He cites examples of the issue (the first of which was, atypically, successfully resolved): “In the 1980s, Beyond Pesticides brought suit on this existing stocks issue, related to the termite insecticide chlordane, which had already been banned for agricultural uses. During the litigation, EPA negotiated a manufacturer withdrawal of the chemical (aka a “voluntary withdrawal”) from the market and allowed existing stocks to be used up, despite the extraordinarily high risks of use of the compound. We went to court on this and explained to the judge that the continued use of chlordane during the depletion of existing stocks would cause on the order of hundreds of additional cancer diagnoses per month, as well as contamination of countless numbers of homes.”

“During the litigation, EPA renegotiated the cancellation and instituted a product recall, with Velsicol Chemical Company (the manufacturer) compensating those who held stocks of the pesticide for their unused product. This is the way it should work, but usually does not. It is outrageous that, after the harm is established and it is known that people and communities will get hurt, EPA would allow such harm to continue. The agency did the same thing with Dursban (active ingredient: chlorpyrifos) when it negotiated a cancellation of its residential uses in 2000. EPA allowed all existing stocks to be sold for a complete year. Retailers then had a fire sale and sold off existing stocks for a solid year, knowing that the risk factors for health impacts on children was very high.”

Beyond Pesticides has called attention to the issue for years: malathion in 2000; chlorpyrifos in 2004; and diazinon in 2004, for example. Beyond Pesticides wrote on the diazinon existing stocks issue: “The EPA first announced the ‘voluntary’ cancellations of registration for diazinon by industry in December 2003. (When EPA does a risk assessment that clearly and undeniably shows elevated dangers due to certain uses, it may encourage the manufacturers to voluntarily cancel registration of the problem uses rather than have the EPA take a ban action. This way the agency might avoid the embarrassment of banning a chemical it previously accepted and registered, often decades before.) The agency has the power to disallow existing stocks to be used, which would raise the level of public alert rather than just make the pesticide essentially disappear from store shelves. By allowing a phase-out of existing stocks, the agency is allowing people to be continually exposed to a chemical that the agency knows is exceedingly dangerous. It further perpetuates public ignorance of the hazards of pesticides and the lack of information that exists prior to their release into the public domain.”

EPA uses other tactics to deal with cancellation of pesticide uses while treading lightly on industry interests. One is the “phaseout,” which gives months or years for sale and/or use to decline and reach zero. In 2000, Beyond Pesticides weighed in on this issue re: EPA’s risk assessments of malathion, diazinon, and chlorpyrifos. Another, as mentioned, is so-called “voluntary cancellation,” in which a company will withdraw a product from the market. Rather than use its regulatory authority to cancel a pesticide’s registration, EPA might engage in prolonged negotiations with industry, after which “manufacturers are enticed into voluntary cancellations when EPA finally threatens action or litigation looms, seeking to avoid a determination or finding by the agency on elevated risk factors that could increase the registrant’s (pesticide manufacturer’s) liability and reduce its export market.” The agency has maintained that adversarial proceedings are costly and time consuming, but many toxic pesticides have remained registered and on the market for years while EPA enacts glacially paced review processes.

The agrochemical industry is interested in one thing: profit. As explained, companies “negotiate” with EPA to get the most profitable arrangement when a pesticide use is at risk of cancellation. Yet another unsavory tactic is selling overseas what cannot be sold in the U.S.: when a pesticide is deregistered or banned in the U.S., chemical companies attempt to preserve profit on those compounds by selling into overseas markets, where they can wreak havoc on the environments and health of non-Americans. Predictably, even as the subject case was in process, industry brought to market yet another dicamba product, demonstrating its indifference to the harms of such compounds. The court’s decision and EPA order do not affect Syngenta’s new Tavium herbicide for use with DT crops because Tavium was not registered when the lawsuit was filed.

This kind of backdoor tactic underscores a systemic problem with pesticide registration and review. When the harms of a pesticide can be demonstrated, entities may file lawsuits against the manufacturer(s) to try to secure a decision that results in EPA’s cancellation of a pesticide’s registration. Given the thousands of harmful pesticide formulations, it approaches insanity to think that all such toxic compounds can be removed from market through such a laborious, prolonged, and expensive process for each formulation. It would make far greater sense, for example, to demonstrate the toxicity of dicamba, and secure a decision in a dicamba case that could apply to all formulations containing the compound.

Jay Feldman again explains, “Manufacturers always claim that all these products (with the same active ingredient) are different. This highlights how ‘surgically’ these cases are framed and adjudicated, rather than decided re: application to the broader issue of applicability to other chemical formulations of the same active ingredient. And this does not even touch the issue of formulations with an additional active ingredient, which currently would require going back to court again to try to secure a separate ruling that would apply more broadly. Courts are typically not very good at doing this, and prefer to make relatively narrow rulings.”

Environmental advocates are less than thrilled with EPA’s response to the Ninth Circuit’s decision. The Center for Food Safety, one of the plaintiffs, commented on the Ninth Circuit’s decision: “[This] disingenuous order from EPA flies in the face of the Court decision holding dicamba-based pesticides unlawful. It ignores the well-documented and overwhelming evidence of substantial drift harm to farmers from another disastrous spraying season. It ignores the risks to hundreds of endangered species. It ignores the comprehensive analysis by the Court of these harms. It raises the same arguments in favor of continued use that the Court has already rejected. The Trump administration is again showing it has no regard for the rule of law. All users that continue to not seek alternatives should be on notice that they are using a harmful, defective, and unlawful product. We will bring the EPA’s failure to abide by the Court’s order to the Court as expeditiously as possible.”

Some critics note that the EPA response is unclear on whether its ruling applies to the use of these herbicides on other, non-GE crops that may be listed on their labels. The Environmental Health Network (EHN) credits the Ninth Circuit court with “a remarkable grasp of the issue and the science,” but also says that the EPA order will, “allow ‘business as usual’ applications of most of the formulated dicamba over-the-top herbicides manufactured for sale and use in crop season 2020.” EHN predicts that EPA will likely, later in 2020, find a way to say “yes” to industry and growers by issuing new registrations for slightly modified OTT dicamba formulations.

EHN further reports that, “Many respected scientists have concluded, and stated publicly, that [dicamba] technology cannot be managed without accepting significant off-target movement and nearby crop and tree damage, regardless of how careful farmers and applicators are. In short, the problem is a design flaw in the technology itself, not adherence to strict and complex label rules.” In addition, it predicts that: farmers will spray more herbicides at higher rates, pay higher prices for herbicides, and struggle to deal with increasingly difficult weed control; the harmful environmental and public health impacts of herbicide use in the Midwest will become more obvious and harder for society to ignore or accept; and weed management practices that rely on proven cultural practices, rather than chemicals, will have to be adopted because there is no other way out of this toxic spiral. “In the interim, expect a wild ride that could leave a lot of collateral damage in its wake if the status quo persists.”

Last, in what appears to be consistent messaging on the Trump administration’s favoring of corporate interests, but odd given EPA’s purview, Administrator Andrew Wheeler seems to stray significantly from mission when he opines in the agency’s news release on the order: “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.” The release continues the sentiment: “EPA’s order [to allow continued use] will mitigate some of the devastating economic consequences of the Court’s decision for growers, and particularly rural communities. . . . Dicamba is a valuable pest control tool that farmers nationwide planned to use during the 2020 growing season. Since the Court issued its opinion, the agency has been overwhelmed with letters and calls from farmers citing the devastation of this decision on the millions of acres of crops, millions of dollars already invested by farmers, and threat to America’s food supply.”

EPA ought, in the present dicamba case, to recognize and act on the Court’s findings that:

  • dicamba’s “toxicity is not limited to weeds,” but extends to “broadleaf plants, bushes, and trees . . . . fruiting vegetables, fruit trees, grapes, beans, peas, potatoes, tobacco, flowers, . . . ornamental plants [and] . . . . many species of large trees, including oaks, elms, and maples”
  • the agency “entirely failed to acknowledge a social cost that had already been experienced and was likely to increase [—] that OTT application of dicamba herbicides has torn apart the social fabric of many farming communities”
  • EPA entirely failed to acknowledge an economic cost that is virtually certain to result from the conditional registrations of the dicamba herbicides for OTT application — that the likely anti-competitive effect of the registrations would impose a clear economic cost, but EPA at no point identified or took into account this cost

Said broadly, EPA should attend to its mission, which is to protect the environment and human health, rather than expend resources to find ways to allow ongoing harm from existing stocks of pesticides that are being cancelled. The public should expect more and better of the agency, which is charged with maintaining a critical public good. Join Beyond Pesticides and help hold EPA accountable.

All unattributed positions and opinions in this piece are those of Beyond Pesticides.

Sources: https://beyondpesticides.org/dailynewsblog/2020/06/federal-court-halts-use-of-drift-prone-dicamba-on-millions-of-acres-of-ge-soy-and-cotton/ and https://www.centerforfoodsafety.org/files/125–dicamba-opinion_35970.pdf

 

 

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