13
Feb
Court Strikes Down EPA’s Allowance of Weedkiller Dicamba after Scathing Inspector General Report
(Beyond Pesticides, February 13, 2024) Last week, the United States District Court for the District of Arizona struck down the U.S. Environmental Protection Agency’s (EPA) 2021 approval of three dicamba-based herbicides. This is the second lawsuit since 2020 to call out EPA’s violation to both the Endangered Species Act (ESA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to authorize the use of over-the-top (OTT) dicamba-based herbicide products from Bayer and other petrochemical pesticide companies. This rejection of dicamba-based herbicides fuels advocates’ push for stronger regulatory actions by EPA for all petrochemical pesticides and their push for the more widespread adoption of organic practices that do not use these chemicals. The case was filed by Center for Food Safety (CFS), Center for Biological Diversity, National Family Farm Coalition, and Pesticide Action Network North America. Beyond Pesticides has covered the dicamba tragedy for years, including the EPA Office of the Inspector General’s critical 2021 report, EPA Deviated from its Typical Procedures in Its 2018 Dicamba Pesticide Registration Decision. The report identifies EPA’s abandonment of science and assault on agency integrity.
In addition to citing adverse impact on nontarget crops and the environment, the Court zeroes in on EPA’s failure to adequately manage resistance and the devasting impact this failure has on farmers’ livelihoods. Pointing to 2021 survey data, the Court, with citations, writes, “new information about dicamba resistance that showed weed resistance was confirmed during the 2020 growing season and [] was becoming much more widespread [] suggesting that weed resistance is not being effectively managed by current training materials that are conditions of registration[]. ‘If weed resistance to dicamba were to follow the same trajectory as glyphosate, the value of dicamba for OTT uses and for other registered dicamba uses would be effectively lost, severely jeopardizing the ability of soybean and cotton producers to control problematic broadleaf weeds.’ [] ‘As dicamba resistance spreads, the benefits of the DT-crop system declines.’”[]
The Court recognizes widespread exposure not controlled by EPA’s attempt to mitigate risk, stating, “’While states indicate incidents may occur due to drift, several reported landscape level injuries], which indicates dicamba volatility was widespread,’ with some states reporting dicamba sources more than a mile away from the injured crop, and reported incidents suggesting people are being impacted for multiple years.”[]
The Court explains that it is taking dramatic action to halt dicamba’s use because of systemic failures in the regulation of pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). After grower groups argued that earlier EPA application restrictions (after an earlier Court decision) were “too restrictive,” the Court writes, “The Court finds that the administrative record for the 2020 Decision and registrations and the 2021 Report reflect the EPA is unlikely to issue the same registrations on remand if it follows FIFRA procedures for notice and comment and hears from all stakeholders, especially those who have from the inception of OTT dicamba use been subjected to the risks of OTT dicamba offsite movement.” The Court continues, “While the EPA has been highly confident control measures would eliminate any such risk to only a minimal effect, the incident reports filed year after year complaining of offsite movement of OTT dicamba reflect otherwise.” While focused on the individual pesticide dicamba, in effect, the Court is recognizing that the pesticide registration process as it currently exists fails to protect public health, the environment, and the farm economy.
According to a statement by George Kimbrell, CFS legal director and counsel for this case: “This is a vital victory for farmers and the environment. Time and time again, the evidence has shown that dicamba cannot be used without causing massive and unprecedented harm to farms as well as endangering plants and pollinators. The Court today resoundingly re-affirmed what we have always maintained: the EPA’s and Monsanto’s claims of dicamba’s safety were irresponsible and unlawful.” One of the most significant impacts that the case highlights is the effects of applying dicamba on farmers who do not plant genetically engineered, dicamba-tolerant seeds. In 2018, according to USDA data analyzed by CFS, “As much as 1 in every 6 acres of ultra-sensitive soybeans were injured by dicamba drift in 2018 alone, over 15 million acres.” Between 2021 and 2023, EPA received nearly 3,500 incident reports from farmers who claimed that more than 1 million acres of non-dicamba-tolerant soybeans and other nontargeted crops (including sugar beets) were damaged by herbicidal drift, according to reporting by Ag Week. The court found that EPA’s “circular approach to assessing risk, hinging on its high confidence that control measures will all but eliminate offsite movement, [led] to its corresponding failure to assess costs from offsite movement.”
Before delving into the human and ecological health impacts of dicamba, it is important to unpack the history of this case and the legacy of court actions against Monsanto (now owned by Bayer). The modern saga on dicamba began back in 2016 when the EPA registered a new formulation of dicamba to control weeds in cotton and soybean crops that have been genetically engineered (GE) to tolerate the chemical. In 2020, the Ninth Circuit nullified “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.” The previous court case found that EPA did not adequately consider adverse health risks from over-the-top dicamba in approving the conditional registration. As of 2023, EPA estimates over 65 million acres of farmland plant dicamba-tolerant soybeans and cotton; however, dicamba products themselves are estimated to be sprayed on about 27 million acres as a form of defense against potential herbicidal drift. The spraying of dicamba products has been projected to increase twentyfold since the EPA reauthorized the use of three dicamba products (one each from Bayer, BASF, and Syngenta) in 2020 despite the court decision at the time.
Dicamba and other types of herbicides have proven to pose stark adverse health risks to farmworkers and ecosystems, based on years of extensive reporting by Beyond Pesticides. For example, there is a strong association between dicamba use and increased risk of developing various cancers, including liver and intrahepatic bile duct cancer, chronic lymphocytic leukemia, and acute myeloid leukemia. In the Gateway on Pesticide Hazards and Safe Pest Management entry for Dicamba, there is a slew of medical studies detailing adverse health and environmental effects, including neurotoxicity, kidney/liver damage, sensitization/irritation, birth/developmental defects, reproductive damage, and respiratory illnesses. Dicamba has also been proven to have adverse health impacts on wildlife habitats, including the spraying of approximately 1,328 pounds in the National Wildlife Refuge in 2016 alone, impacting bird populations and pollinator species in particular. Dicamba is a poster child of a failed regulatory system that creates ecosystem imbalances by attempting to correct them, considering that the herbicidal drift of this herbicide has proven to lead to antibiotic resistance after testing sublethal traces on bacteria.
There is a long legacy of industry capture of pesticide regulatory efforts predating these court rulings, but also occurring in tandem with these wins. For example, “As [the Ninth Circuit in 2020] was being announced, new formulations of dicamba and new herbicide-tolerant crops were being brought on to the market.” Also in 2020, Bayer submitted a petition to the Animal and Plant Health Inspection Services in the EPA to deregulate “multi-herbicide tolerant MON 87429 [corn]”, which is tolerant to herbicides including dicamba and glyphosate. A report by the Midwest Center for Investigative Reporting uncovered damning information that, “Monsanto released and marketed its dicamba products knowing that dicamba would cause widespread damage to soybean and cotton crops that weren’t resistant to dicamba. They used ‘protection from your neighbors’ [messaging] as a way to sell more of their products. In doing so, the companies ignored years of warnings from independent academics, specialty crop growers and their own employees.” Bayer’s awareness of the toxicity of their pesticide products is analogous to the oil and natural gas industry’s internal research and subsequent cover-up of the long-term impacts of fossil fuel production on global temperature increases, ecological stability, and public health via anthropogenic, atmospheric carbon dioxide emissions. This pattern of corporate capture of institutions designed to serve the public emphasizes Beyond Pesticides’ belief in strengthening regulatory oversight by arming the public and advocates with the tools, science, and resources to prevent agency acquiescence to industry.
Beyond Pesticides continues to provide resources and support for local communities looking to learn more about how to protect their families and loved ones from pesticide residue exposure. For more information and scientific research on the compounding health impacts of petrochemical pesticides, please see the Pesticide-Induced Disease Database. To get involved in advocating for a more robust regulatory regime, click on the following link or image featured left to access last week’s Action of the Week.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Source: The Center for Food Safety
Do the right thing please
February 14th, 2024 at 3:32 pm