01
Jul
Call for EPA to Reject Harmful Weed Killer; Politicized Supreme Court Takes the Reins from Agencies
(Beyond Pesticides, July 1, 2024) Comments on proposed new dicamba uses are due Friday, July 5
The U.S. Environmental Protection Agency (EPA) is accepting public comments until July 5 on whether it should allow the expanded use of the weed killer dicamba, which has been associated with adverse impacts associate with its propensity to drift off of the target application site. The comment period addresses a BASF chemical company proposal for additional food use of a dicamba product on dicamba-tolerant cotton and dicamba-tolerant soybeans. (See Beyond Pesticides’ comments.) This application is similar to Bayer CropScience’s application for XtendiMax®, for which Beyond Pesticides submitted comments in June. The proposed label for BASF’s Engenia® allows for application preplant, at-planting, preemergence, and postemergence (in-crop) for broadleaf weeds.
Tell EPA to ban use of dicamba and other drift-prone pesticides.
The U.S. Supreme Court Reversal
This proposal coincidentally is under consideration on the heels of a U.S. Supreme Court decision on June 28 that reverses a 40-year old decision in Chevron v. Natural Resources Defense Council, which created a deference to federal agencies in the rulemaking process. In the dissent to this 6-3 decision of the court, the dissenters focus on the role of executive branch agencies: “Congress has conferred on that expert, experienced, and politically accountable agency the authority to administer—to make rules about and otherwise implement—the statute giving rise to the ambiguity or gap.” Agencies, the dissenters say, are intended to have “subject-matter expertise.”
The court majority finds that Chevron conflicts with the Administrative Practices Act (APA), saying, “Chevron defies the command of the APA that “’the reviewing court”—not the agency whose action it reviews—is to “decide all relevant questions of law” and “interpret . . . statutory provisions.’” The dissent continues: “In recent years, this Court has too often taken for itself decision-making authority Congress assigned to agencies. The Court has substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education.” The dissent sees the decision of the court’s majority as turning the judicial institution into the “country’s administrative czar,” and violating the court’s key principle of stare decisis, which establishes precedent as requiring a extraordinary set of circumstances to reverse—a tenet this Supreme Court has appeared comfortable in rejecting, including in Dobbs v. Jackson Women’s Health Organization (2022), reversing the court’s 1973 decision in Roe v. Wade.
If public comments pour into EPA, urging the agency to look carefully at both the science on dicamba’s adverse effects and decides to deny the registration, as Beyond Pesticides advocates, will the chemical industry challenge the agency as relying on a “statutory ambiguity,” or the discretionary authority given to it by Congress. Whether affected parties or public interest organizations concur with their decisions, agencies are supposed to have expertise to implement laws and bring the facts to the rulemaking process. But, of course, there are facts and there are “alternative facts.” And, in the realm of pesticide regulation, many times it is the lack of facts, data gaps, uncertainties, and limited reviews that support regulations that are not adequately protective even though there is much data in the scientific literature that suggests there is more science than is being considered by the regulators (e.g., endocrine disruption, pollinators, disproportionate harm and vulnerable population groups, comprehensive ecosystem effects, etc.). The fact is that there has been a swing from the Reagan to Biden Administrations, with conservatives and chemical company interests embracing the Chevron decision and then rejecting Chevron, as agencies took stronger positions on climate, environmental justice, etc. (even though many environmental and public health groups see them as inadequate to meet current existential threats).
What EPA Needs to Consider with Dicamba
Dicamba is a drift-prone herbicide that has proved to be extremely difficult to control by regulation. EPA is now considering two new dicamba registrations that continue use of the chemical in its most drift-prone application uses.
Tell EPA to ban use of dicamba and other drift-prone pesticides.
Pesticide drift harms people, crops, and wildlife. The term “drift” applies to airborne movement off the target site—though pesticides may also move as runoff and in soil carried by water or wind. Drift may consist of particles or droplets of pesticide as it is applied or vapors that evaporate and are carried in the air. Farmers and applicators may take steps to avoid drift—including buffer zones, thickening agents, and attention to wind direction—but drift-prone pesticides like dicamba are not always controlled by these actions. Those harmed by the drift are generally not those whose crops are sprayed, so the risk-benefit analysis pits farmer against farmer, neighbor against neighbor, even resulting in a murder.
The manufacturers of dicamba-based herbicides—who also sell seeds of crops engineered to tolerate dicamba—benefit from this conflict, as farmers buy the engineered seeds in an effort to defend themselves against drift damage, a strategy encouraged by pesticide manufacturers.
Despite a finding of dicamba’s harm and EPA’s failure to comply with standards, the continued use of the weed killer through the 2024 growing season is effectively authorized in a decision of the U.S. District Court of Arizona, which vacates the EPA’s 2021 authorization of the use of three over-the-top (OTT) uses of dicamba-based herbicide products. In response, EPA issued an existing stocks order. And now proposed registrations would allow those uses to continue. The comment period on the Bayer application has closed, but comments on the virtually-identical application for BASF’s Engenia® are open until July 5. (See Beyond Pesticides’ comments.)
The proposed label for Engenia® allows for application preplant, at-planting, preemergent, and postemergent (in-crop) for broadleaf weeds. In dicamba-tolerant soybeans, there is a June 12 cutoff date with applications allowed before, during, and after planting, including over-the-top. In dicamba-tolerant cotton, similar conditions apply but with a cutoff date of July 30. This is different from the Bayer CropScience proposal where no over-the-top application was specified for soybeans. The new proposed uses, since they increase use of dicamba and subsequent harm from pesticide drift, should be denied for failure to meet the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) requirement of no unreasonable adverse effects on the environment.
Increasing global temperatures need to also be factored into the decision-making process. All dicamba formulations have the potential to volatilize since dicamba has a high vapor pressure. Increases in air temperature can cause dicamba to turn into a gas even after successful application on target surfaces. Since volatilization increases as temperatures increase, this is more and more concerning as temperatures are rising higher each year. The length, intensity, and onset of seasons has changed, which can be attributed to climate change. The longer and hotter summers will exacerbate dicamba volatilization, therefore any proposal that allows dicamba application in late Spring and Summer will lead to more drift–especially for postemergent and over-the-top applications.
Although pesticides are by definition harmful, what makes these adverse effects “unreasonable” is the existence of an alternative—an organic production system—that does not harm human health, other species, or ecosystems and, in addition, helps to mitigate climate change. In its registration decisions, EPA must use organic production as a yardstick, denying any use for which organic production is successful. This includes the proposed uses.
Proposed submission to EPA (submit by 5:00pm(Eastern), July 5
Dicamba is a drift-prone herbicide that has proved to be extremely difficult to control by regulation. EPA is now considering two new dicamba registrations that continue use of the chemical in its most drift-prone application uses.
Pesticide drift harms people, crops, and wildlife. The term “drift” applies to airborne movement off the target site—though pesticides may also move as runoff and in soil carried by water or wind. Drift may consist of particles or droplets of pesticide as it is applied or vapors that evaporate and are carried in the air. Farmers and applicators may take steps to avoid drift—including buffer zones, thickening agents, and attention to wind direction—but drift-prone pesticides like dicamba are not always controlled by these actions. Those harmed by the drift are generally not those whose crops are sprayed, so the risk-benefit analysis pits farmer against farmer, neighbor against neighbor, even resulting in a murder.
The manufacturers of dicamba-based herbicides—who also sell seeds of crops engineered to tolerate dicamba—benefit from this conflict, as farmers buy the engineered seeds in an effort to defend themselves against drift damage, a strategy encouraged by pesticide manufacturers.
Despite a finding of dicamba’s harm and EPA’s failure to comply with standards, the continued use of the weed killer through the 2024 growing season is effectively authorized in a decision of the U.S. District Court of Arizona, which vacates the EPA’s 2021 authorization of the use of three over-the-top (OTT) uses of dicamba-based herbicide products. In response, EPA issued an existing stocks order. And now proposed registrations would allow those uses to continue.
The proposed label for Engenia® allows for application preplant, at-planting, preemergent, and postemergent (in-crop) for broadleaf weeds. In dicamba-tolerant soybeans, there is a June 12 cutoff date with applications allowed before, during, and after planting, including over-the-top. In dicamba-tolerant cotton, similar conditions apply but with a cutoff date of July 30. This is different from the Bayer CropScience proposal where no over-the-top application was specified for soybeans. The new proposed uses, since they increase use of dicamba and subsequent harm from pesticide drift, should be denied for failure to meet the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) requirement of no unreasonable adverse effects on the environment.
Although pesticides are by definition harmful, what makes these adverse effects “unreasonable” is the existence of an alternative—an organic production system—that does not harm human health, other species, or ecosystems and, in addition, helps to mitigate climate change. In its registration decisions, EPA must use organic production as a yardstick, denying any use for which organic production is successful. This includes the proposed uses.
Increasing global temperatures also need to be considered. All dicamba formulations have the potential to volatilize since dicamba has a high vapor pressure. Increases in air temperature can cause dicamba to turn into a gas even after successful application on target surfaces. Since volatilization increases as temperatures increase, this is more and more concerning as temperatures are rising higher each year. The length, intensity, and onset of seasons has changed, which can be attributed to climate change. The longer and hotter summers will exacerbate dicamba volatilization, therefore any proposal that allows dicamba application in late Spring and Summer will lead to more drift–especially for postemergent and over-the-top applications.
EPA must not approve the proposed expanded use of dicamba and must cancel uses of all drift-prone pesticides.
Thank you.
