BASF and Corteva have asked a U.S. appeals court to reconsider a ruling which led to an effective ban on dicamba weed killers, which has been linked to widespread crop damage and other risks.
Last month, the U.S. Ninth Circuit Court of Appeals vacated the U.S. Environmental Protection Agency (EPA) approval of dicamba formulations for the weed killers XtendiMax, FeXapan and Engenia, determining that the EPA did not pay enough attention to the risk of dicamba crop damage on neighboring farms.
As a result of the ruling, the EPA issued a final cancellation order, which allows limited distribution of existing stocks of the three weed killers by commercial applicators until July 31.
BASF and Corteva have filed a request for an “en banc” review of the Ninth Circuit’s decision, which would require a panel of all 11 judges, as opposed to the three-judge panel which issued the decision in June. BASF claims the original decision included errors that were inconsistent with the law and the court process, according to a report last week by AG Daily.
In a press release last month following the verdict, BASF claimed the decision put farmers in a precarious position.
“Taking this action during the height of the application season gives no regard to the significant investments farmers have made in their businesses and leaves them without viable options for the growing season,” Paul Rea, Senior Vice President, BASF Agricultural Solutions North America, said in the press release. “Farming is difficult even in the best of times and remains challenging. Making this decision now, when weed resistance continues to threaten farming operations, is disastrous for our customers.”
Dicamba is a synthetic herbicide that is sold under the brand names Xtendimax, Engenia, and Fexapan, all of which involve so-called “over-the-top” applications, where it is applied on crops emerging from the ground.
Although dicamba 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 genetically modified to be tolerant of the weedkiller, allowing farmers to use dicamba “over-the-top” after purchasing the special seeds. However, as the weedkiller has drifted onto neighboring farms, it has caused wide-spread damage to crops of farmers who decided not to purchase the genetically modified seeds.
BASF claims removing the weed killer from the market could cause farmers as much as $10 billion in losses in the U.S.
However, dozens of dicamba drift lawsuits have been filed since August 2017, alleging that Monsanto rushed a system to market that encouraged the increased use of dicamba, while withholding or concealing 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.
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 lawsuits 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.