Environmentalists Say EPA Defying Court Ruling That Bans Dicamba

Confusion has erupted in the wake of a recent court ruling, which stripped away federal approval for the weed killer dicamba, with environmental groups accusing federal regulators of failing to heed the court order, and states complaining that not every jurisdiction is handling the situation the same.

Last week, 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. The court ruled that the EPA did not pay enough attention to the risk of crop damage from dicamba, and that it even downplayed some of those risks.

As a result, the EPA issued a final cancellation order (PDF), which allows limited distribution of existing stocks of the three weed killers by commercial applicators until July 31.

However, critics say the court ruling gives no such leeway, and that with the vacating of the herbicides’ licenses, its use should end immediately. What’s more, some states complain the EPA final cancellation order is not being interpreted the same in every state.

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.

On June 8, the Center for Food Safety lambasted the EPA cancellation order, calling it disingenuous and noting that the court called for the immediate vacating of dicamba approval, not a delayed one.

“Today’s disingenuous order from EPA flies in the face of the Court decision holding dicamba-based pesticides unlawful. It ignores the well-documented and overwhelming evidence of substantial drift harm to farmers from another disastrous spraying season,” the Center’s legal counsel said in a press release. “It raises the same arguments in favor of continued use that the Court has already rejected.”

The Center says it will go to the court to ensure that the ruling is enforced. However, the EPA states limited use of dicamba is warranted by portions of its 1991 Existing Stocks Policy.

“The Court vacated those registrations on the view that EPA substantially understated risks that it acknowledged and failed to acknowledge other risks,” the EPA cancellation order states. “In light of the Court’s reasoning for its vacatur, EPA is substantially restricting sale and distribution of existing stocks of these dicamba products.”

Environmental groups are not the only ones complaining about the order, however, as some state officials say the order and ruling have sewn confusion among the agricultural industry.

An official with the Wisconsin Agribusiness Association told Brownfieldagnews.com on June 10 that Wisconsin believes the ruling says you can use dicamba if you have it, but you can’t sell it, and any unsold products must be sent back to the distributor. However, in Illinois they are interpreting the order as saying anything in warehouses as of June 3 can be sold until July 31.

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.

Dicamba Crop Damage Lawsuits

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.

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.