Ninth Circuit Bans Dicamba, Says EPA Ignored Evidence of Harm

Dicamba is now illegal, thanks to yet another court ruling determining that the Trump Environmental Protection Agency has failed to do its job:

A federal appeals court has ruled that Monsanto’s controversial weedkiller dicamba can no longer legally be sprayed over crops, or sold for that use, leaving farmers across the country with product they can’t use, and likely costing Monsanto’s successor, Bayer, tens of millions of dollars in lost sales this year alone.

The unanimous 56-page ruling handed down on Wednesday by three judges from the U.S. Ninth Circuit Court of Appeals in San Francisco said that the Environmental Protection Agency’s most recent approval of top dicamba herbicides in 2018 “substantially understated” multiple risks recognized by the agency, and “also entirely failed to acknowledge” others [Bryce Gray, “Court Rules Dicamba Illegal on Crops. Bayer Stands to Lose Millions,” St. Louis Post-Dispatch, 2020.06.05].

The court says the Trump EPA either ignored or downplayed evidence of the damage dicamba was doing to neighboring farmers crops:

The EPA substantially understated three risks that it acknowledged. The EPA substantially understated the amount of DT [dicamba-tolerant] seed acreage that had been planted in 2018, and, correspondingly, the amount of dicamba herbicide that had been sprayed on post-emergent crops. Further, the EPA purported to be agnostic as to whether formal complaints of dicamba damage under-reported or over-reported the actual damage, when record evidence clearly showed that dicamba damage was substantially under-reported. Finally, the EPA refused to estimate the amount of dicamba damage, characterizing such damage as “potential” and“alleged,” when record evidence showed that dicamba had caused substantial and undisputed damage [Judge William A. Fletcher, opinion, National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America v. U.S. Environmental Protection Agency, Andrew Wheeler, and Monsanto Company, U.S. Ninth Circuit Court of Appeals, 2020.06.03].

The court also found that the Trump EPA’s labeling requirements were ineffective and that dicamba caused both economic and social harm:

The EPA also entirely failed to acknowledge three other risks. The EPA entirely failed to acknowledge record evidence showing the high likelihood that restrictions on OTT [over-the-top] dicamba application imposed by the 2018 label would not be followed. The EPA based its registration decision on the premise that the label’s mitigation measures would limit off-field movement of OTT dicamba. These measures became increasingly restrictive with each iteration of OTT dicamba labels. Record evidence shows that the restrictions on the 2016 and 2017 labels had already been difficult if not impossible to follow for even conscientious users; the restrictions on the 2018 label are even more onerous. Further, the EPA entirely failed to acknowledge the substantial risk that the registrations would have anti-competitive economic effects in the soybean and cotton industries. Finally, the EPA entirely failed to acknowledge the risk that OTT dicamba use would tear the social fabric of farming communities [Fletcher, Ninth Circuit, 2020.06.03].

Alas, we can’t count on states to show some good sense and protect their fields and citizens from these clear risks. The Ninth Circuit overturned the federal registration of dicamba, but it didn’t touch state registrations. The Iowa Department of Agriculture is waiting for guidance from the EPA before it issues any stop order. Nebraska is saying, sure, why not continue spraying illegal and unneighborly poison? North Dakota has issued its own state label for dicamba, with its Agriculture Commissioner Doug Goehring saying he doesn’t care if the Ninth Circuit holds him in contempt, because their ruling was “irresponsible.” Minnesota is our only neighbor to say the court’s findings mean farmers should leave dicamba products in the jug.

South Dakota’s Department of Agriculture hasn’t declared whether it will follow the Ninth Circuit’s ruling or not (LGAS Larry Rhoden is apparently too busy with State Fair planning to read court decisions), but SDSU Extension Weed Science Coordinator Paul Johnson says spraying dicamba right now is illegal.