On June 3, 2020, a three-judge panel from the Ninth Circuit of the U.S. Court of Appeals ruled that the EPA failed to acknowledge the risks associated with over-the-top (OTT) dicamba applications and did not recognize the seriousness of reports of drift damage (OTT applications are sprayed directly over the herbicide-resistant crops during the growing season). The court revoked the registration for Bayer’s XtendiMax and other dicamba-based herbicides for use on GMO-resistant soybeans. This action essentially bans further sales and use of the products.
Whether the Court’s action will be honored and enforced remains to be seen.
As Reuters reports, this ruling affects over half the soybeans grown in the U.S., and will have huge implications for farmers moving forward.
Note that the ruling applies to the EPA’s 2018 conditional registration for the newly formulated, supposedly low-volatility formulations of dicamba herbicides. Bayer and other companies are currently working with EPA on new, 2021 re-registration for their OTT dicamba herbicides.
An excerpt from the ruling explains why the judges issued such a strong and consequential decision:
“The EPA substantially understated three risks that it acknowledged. The EPA substantially understated the amount of DT 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.
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 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 anticompetitive
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.
We therefore vacate the EPA’s October 31, 2018, registration decision and the three registrations premised on that decision.”
Tom Polansek, Ludwig Burger, and Sabahatjahan Contractor; “U.S. court blocks sales of Bayer weed killer;” Reuters, Date Posted: June 3. 2020, Date Accessed: June 4, 2020.
US Court of Appeals, Ninth Circuit; National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, Pesticide Action Network North America vs. U.S. Environmental Protection Agency and Monsanto Co.; no. 19-70115, Filed June 3, 2020.