Dicamba’s EPA Approval Revoked By Federal Appeals Court

A federal appeals court has vacated approval of several forms of the controversial dicamba weed killer, including XtendiMax, FeXapan and Engenia, which critics say drift onto nearby unprotected crops, causing significant damage.

The U.S. Ninth Circuit Court of Appeals issued an opinion (PDF) on June 3, determining that the U.S. Environmental Protection Agency (EPA) wrongly granted approval to dicamba formulations for over-the-top (OTT) uses on crops.

The decision has led to the EPA issuing a final cancellation order (PDF) for OTT dicamba products, which has thrown the agricultural industry into some confusion regarding the continued use of 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, on dicamba-tolerant (DT) genetically modified crops.

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.

Farmers and environmental groups say the herbicide drifts onto neighboring crops that are not dicamba tolerant, killing them and forcing farmers to buy the genetically engineered seeds so their crops aren’t killed by dicamba.

The EPA approved this latest version of dicamba in November 2016; a decision that is also now under investigation by the Office of Inspector General (OIG). The agency renewed the approvals in late 2018.

In January, the National Family Farm Coalition, the Center for Food Safety, the Center for Biological Diversity, and the Pesticide Action Network filed a petition to have the Ninth Circuit review the EPA’s decision. The court heard oral arguments in April.

The panel of three judges with the Ninth Circuit ruled that the EPA’s 2018 approvals were in violation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), indicating that the EPA understated three risks that it acknowledged; including the amount of dicamba herbicide that had been used prior to 2018 on DT seed acreage and formal complaints of dicamba damage. The agency also refused to estimate the amount of dicamba damage which had been done at that point, the court determined, despite “record evidence” showing substantial damage. The court said the agency was “agnostic” as to whether damage was being under-reported or over-reported.

In addition, the EPA also failed entirely to acknowledge three other risks; including evidence that restrictions the agency placed on dicamba in 2018 would not be followed, the potential anti-competitive economic effects dicamba would have on the soybean and cotton industries, and the damage dicamba use would do to the “social fabric of farming communities.”

“We are aware of the practical effects of our decision. Among other things, we are aware of the adverse impact on growers who have already purchased DT soybean and cotton seeds and dicamba products for this year’s growing season, relying on the availability of the herbicides for post-emergent use,” the court’s opinion states. “We acknowledge the difficulties these growers may have in finding effective and legal herbicides to protect their DT crops if we grant vacatur. They have been placed in this situation through no fault of their own. However, the absence of substantial evidence to support the EPA’s decision compels us to vacate the registrations.”

As a result of the decision, the EPA issued a final cancellation order for Xtendimax with Vaporgrip Technology, Engenia, and FeXapan. The EPA’s order states they are no longer registered as of June 3. However, the agency says existing stocks of the weed killers can be used if they have already been purchased. Products which have not yet been sold must be returned to the manufacturer for proper disposal.

The manufacturers of the herbicides have already faced a growing number of dicamba crop damage lawsuits filed over the last two years, each raising similar allegations that Monsanto and BASF are to blame for the chemical catastrophe which has destroyed millions of acres of farmlands across the U.S.

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 claimed 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.