The U.S. Ninth Circuit Court of Appeals heard oral arguments last week over whether the weed killer dicamba was unlawfully approved for sale, and whether the Court should order a ban on spraying the herbicide in the United States this growing season.
The petition for review (PDF) was filed by the National Family Farm Coalition, the Center for Food Safety, the Center for Biological Diversity, and the Pesticide Action Network in January, calling for a review of the herbicide’s approval.
While dicamba is made by the Bayer subsidiary Monsanto and BASF, the U.S. Environmental Protection Agency (EPA) is the defendant named in the lawsuit.
A three-judge panel in the Ninth Circuit heard arguments from both plaintiffs and defendants on April 21, and is now considering whether the EPA wrongly approved the weed killer and whether the panel should take actions to protect farmers’ crops from the herbicide.
Dicamba is a synthetic herbicide that is sold under the brand names Xtendimax, Engenia, and Fexapan. Although it has been used for years by farmers nationwide to control weeds, traditionally it was only applied during certain times of the year. However, use of the herbicide increased dramatically after new seeds were introduced in 2016, which were designed to allow farmers to use dicamba “over-the-top”, where the herbicide is applied on crops emerging from the ground.
Dozens of dicamba drift lawsuits have been filed since August 2017, alleging Monsanto rushed the system to market and either withheld or concealed information from regulatory authorities about the volatility of dicamba-resistant crops.
The EPA approved this latest version of dicamba in November 2016; a decision now under investigation by the Office of Inspector General (OIG).
Plaintiffs in this latest lawsuit say the decision was a violation of federal pesticide laws and the Endangered Species Act, and that EPA should have made the protection of farmers’ crops more of a priority.
Attorneys representing Bayer at the hearing reportedly told the judges that even if plaintiffs win their case, the court should avoid blocking dicamba use this season, saying it would cause chaos throughout the farming industry.
In February, a Missouri jury awarded $265 million to a peach farmer in the first dicamba crop damage lawsuit to go to trial. The verdict included $15 million in compensatory damages and $250 million in punitive damages, designed to punish Monsanto and BASF for their reckless behavior in marketing the widespread use of the weed killer.
The dicamba lawsuit claims the high volatility is seen as a feature by the manufacturers, meant to force other farmers to use their expensive products to grow dicamba-tolerant GMO crops if they don’t want to suffer losses when their neighbors spray.
The case is viewed as a “bellwether” for similar dicambi crop damage lawsuits that have been filed over the last couple years, each raising similar allegations that Monsanto and BASF are to blame for the chemical catastrophe occurring on millions of acres of farmlands across the U.S.