10
Jun
Federal Court Halts Use of Drift-Prone Dicamba on Millions of Acres of GE Soy and Cotton
(Beyond Pesticides, June 9, 2020) Use of the weed killer dicamba on genetically engineered (GE) cotton and soybeans is now prohibited after a federal court ruling against the U.S. Environmental Protection Agency (EPA) last week. A coalition of conservation groups filed suit in 2018 after EPA renewed a conditional registration for dicamba’s ‘over the top’ (OTT) use on GE cotton and soy developed to tolerate repeated sprayings of the herbicide. “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 in a press release.
First registered in the late 1960s, dicamba has been linked to cancer, reproductive effects, neurotoxicity, birth defects, and kidney and liver damage. It is also toxic to birds, fish and other aquatic organisms, and known to leach into waterways after an application. It is a notoriously drift-prone herbicide. Studies and court filings show dicamba able to drift well over a mile off-site after an application.
Bayer’s Monsanto thought they could solve this problem. The “Roundup Ready” GE agricultural model the company developed, with crops engineered to tolerate recurrent applications of their flagship glyphosate weedkiller, was in trouble. Repeated glyphosate spraying on the same plots put natural selection into overdrive and fueled rapid and widespread weed resistance.
Rather than move to an alternative model, Bayer’s Monsanto doubled down and determined that the solution to weed resistance was to bring more herbicides into the mix. After all, GE agriculture allows chemical companies to increase profits by vertically integrating seed and chemical divisions; glyphosate’s failure is a business opportunity for the industry. The company’s new line of seeds would see dicamba use in agriculture explode from roughly one million pounds to nearly 10 million per year.
There were problems from the start. Bayer’s Monsanto had developed new dicamba-tolerant seeds and received approval to sell them from the U.S. Department of Agriculture in 2015. But EPA was not as fast to register the company’s patented “vapor grip” formulation of dicamba and glyphosate (Xtendimax), intended to be sprayed on its GE seeds. Nonetheless, Bayer’s Monsanto urged farmers to plant its seed because it claimed they would increase yields. The results of this were predictable: farmers began to use older, unapproved dicamba formulations on their new GE seeds, and reports of damage began to spring up throughout the US.
Non-soybean farmers began taking action. Bader Farms, the largest peach farm in Missouri, filed suit against Bayer’s Monsanto seeking compensation for damage and defoliation of its trees after illegal dicamba use. The dicamba scandal pitted farmer against farmer, tearing apart many agricultural communities. As reported by NPR, one Arkansas farmer was killed in a dispute with his neighbor that involved use of dicamba herbicides. That state became one of the first to consider regulatory action, with the Arkansas Plant Board voting 12-0 to move forward on measures to restrict agricultural use of dicamba and stop illegal spraying.
By the end of 2016, EPA had approved the company’s new “low volatility” herbicide formulation under a two year conditional registration. The label required a range of restrictions intended to minimize drift. However, by the end of 2017, according to court records and reporting from Reuters, state agriculture departments were fielding over 2,600 incident reports and scientists estimated over 3.6 million acres of non-GE soybean crops had been damaged by dicamba drift – likely an underestimate according to EPA’s own staff.
Despite accumulating data to the contrary, Bayer’s Monsanto continued to blame crop damage on farmers using older dicamba formulations. Conservation groups (National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America) filed their first lawsuit against EPA in early 2017, and by the end of the year Arkansas and Missouri banned the sale and use of OTT dicamba, with Arkansas’ decision coming on the heels of a public advocacy campaign run by Beyond Pesticides. In October 2017, EPA announced, alongside Bayer’s Monsanto and other chemical companies, further label restrictions on OTT dicamba use. “We’re very excited about it,” said Scott Partridge, Monsanto’s vice president of global strategy at the time. “It directly addresses what we found to be the causes of the off-target movement in 2017, and we think it sets the stage for all growers and applicators to have a positive experience in 2018.”
With the bad press rampant, Bayer’s Monsanto made plans to cover more than half the cost of its Xtendimax dicamba herbicide as an incentive to get farmers to plant its GE seeds. By the beginning of 2018, Arkansas had announced an official ban on dicamba use during the growing season (April- October), the toughest restrictions from any state to date. The company sued, but quickly lost a court battle, as the judge cited recent precedent holding that the state cannot be made a defendant in court.
The new label language did little to abate the damage the herbicide was causing, and another lawsuit was filed in 2018 by a Kansas farmer alleging damage to his row crops. In mid-August an investigative report found indications as to why new labels were insufficient: EPA let Bayer’s Monsanto write the new rules themselves.
In late 2018, prior to the expiration of its conditional registration, EPA announced it would renew registration of dicamba products conditionally for another two years, alongside yet more label changes intended to address “potential concerns.” As a result, a federal court ruled that conservation groups’ 2016 lawsuit was moot, but the groups quickly repetitioned the court in January 2019.
One key aspect of the 2018 label changes was the implementation of a buffer zone of 57 ft. An investigative report from the Arkansas Democrat and Chronical (ADC) found that number to be far smaller than what scientists and EPA staff had recommended. Emails retrieved by ADC found that Bayer’s Monsanto worked closely with University of Arkansas weed science Professor Jason Norsworthy, PhD, on a field study to assess dicamba drift from its Xtendimax product. The collaboration was copacetic until results of the study showed that a 443 ft buffer would be required to avert adverse impacts. After disputes with the company, EPA’s scientific staff agreed. However, even in the face of earlier press coverage on how the agency let Bayer’s Monsanto write its own rules, it appears that political staff and then-Acting EPA Administrator Andrew Wheeler overruled the science again in favor of the chemical industry’s economic benefit.
Subsequent independent studies have found that the combination of glyphosate with dicamba is likely to increase the probability that dicamba will drift. “…[O]ur data shows the addition of glyphosate to a dicamba spray solution increased dicamba detection in the atmosphere which would point to increased volatilization,” said Tom Mueller, PhD, a professor in the University of Tennessee Department of Plant Sciences. Synergy between dicamba and glyphosate had already been shown to damage the DNA of of toads.
Drift and environmental damage continued throughout 2019, with July seeing reports of soybean field research plots damaged in several states, including Missouri, Kansas, Nebraska, and Arkansas, making it near impossible to carry out public research on non-GE crop varieties. Not only did drift harm public research, it eroded the market for non-GE soybeans, as growers saw GE dicamba seeds as their only way to avoid dicamba damage to their farm.
A report in late 2019 by Arkansas Audubon found widespread impacts to the habitat of birds and other wildlife. The organization wrote that it “predicts that in a landscape full of GMO crops [genetically modified organisms] (on which dicamba is typically used), the atmospheric loading of volatile dicamba could be enough to cause landscape scale damage to our state natural areas, wildlife management areas, national wildlife refuges, family farms, and the wildlife they harbor.”
In 2020, the tide finally began to turn away from chemical industry damage and destruction, and toward compensation and comeuppance. Missouri’s Bader Farms was awarded $265 million in compensation from Bayer’s Monsanto and BASF (another maker of a GE dicamba-based herbicide) for the damage caused to their peach farm. Critically, the jury determined that the joint venture between the two companies amounted to a conspiracy to create an “ecological disaster” in the name of profit.
The written court ruling by the Ninth Circuit released in early June clearly spells out the violations of federal pesticide law (Federal Insecticide Fungicide and Rodenticide Act) by EPA in re-approving OTT dicamba under another conditional registration. The court ruling was made on the basis that “EPA substantially understated the risks it acknowledged and failed entirely to acknowledge other risks.”
Among the violations cited by the court were EPA’s understatement of the amount of dicamba tolerant seed planted, whether formal complaints were accurately reported, and it’s complete refusal to estimate actual damage. Instead of estimating damage in real numbers, the court chastised the agency for referring to dicamba damage as “potential” or “alleged,” an approach that lines up with the gaslighting the chemical industry perpetrated on affected farmers.
The judge also took EPA to task in three areas rarely considered under FIFRA. First, EPA’s failure to acknowledge that the iterative tightening of dicamba’s label language over the years effectively made it “difficult if not impossible to follow for even conscientious users.” Second, that EPA failed to consider the “anti-competitive economic effects” of GE dicamba on the non-GE cotton and soybean markets. And lastly, that the agency failed to consider how “OTT dicamba use would tear the social fabric of farming communities.” These critical components provide important precedent for future lawsuits challenging egregious abuses under federal pesticide law.
“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.”
As the court acknowledged, vacating all OTT dicamba registrations (including those by Bayer’s Monsanto, BASF, and Corteva [DowDupont]) would result in difficulties to some growers (the court noted it was not growers’ fault), but was compelled to do so as a result of “the absence of substantial evidence to support the EPA’s decision.”
While celebrating this victory and the new legal approaches it may provide conservation groups, it is important to acknowledge that this win is one that has only stopped damage. It has not created new more sustainable systems, but tamped down on an approach that has gone on for a long time. Dicamba’s failure is indicative not only the failure of GE agriculture, but the failure of public agencies to work in the public’s interest. Make no mistake, it is expected that EPA and the chemical industry will double down again, as it always does. In fact, there are already reports that EPA plans to allow farmers to use existing stocks of GE dicamba products.
Farmers and consumers can work together to move agricultural economies away from practices that line the pockets of executives while poisoning food and the surrounding environment. The longest running field trial in the country found that organic practices get higher returns than chemical- intensive agriculture. Organic agriculture is a boon for local economies, and a critical way to promote economic security, health equity, and climate resilience. Help create the sustainable agricultural industry we all deserve by engaging with and holding public officials accountable, and making food choices that protect your health and the environment.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Source: Center for Food Safety Press Release, U.S. Court of Appeals for the Ninth Circuit Court Ruling
Photo: Dicamba drift damage on soybeans – K-State Research and Extension
