Uncertain Future for Dicamba after US Court Makes Its Use Illegal



Dear Friends and Colleagues

Uncertain Future for Dicamba after US Court Makes Its Use Illegal

 On 3 June 2020, the US Court of Appeals for the Ninth Circuit overturned the U.S. Environmental Protection Agency’s approval of popular dicamba-based herbicides made by chemical giants Bayer, BASF and Corteva Agrisciences. The ruling effectively makes it illegal for farmers to continue to use the product. (Items 1 & 2)

The lawsuit was brought by the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America. The plaintiffs accused the EPA of breaking the law in evaluating the impacts of a system designed by Monsanto (bought by Bayer in 2018) that has triggered “widespread” crop damage across the country.

Monsanto launched GM dicamba-tolerant soybean and cotton seeds a few years ago after its glyphosate-tolerant crops and widespread spraying of glyphosate created an epidemic of weed resistance across US farmland. Dicamba has a propensity to drift far from intended target areas and damage other farms, gardens, orchards, and shrubs.

In 2018, farmers planted approximately 56 million acres of dicamba-resistant cotton and soybean seeds across the US. What followed was a litany of complaints from farmers who did not use such seeds but whose crops were hurt by dicamba drift. Some estimates indicate that 3.6 million acres of farmland were damaged by the application of dicamba in 2017 alone. This led Arkansas and Missouri to ban dicamba use in 2017. More than one million acres of crop damage was reported in 2019 in 18 states.

The Ninth Circuit faulted the EPA for the following:

  • It “substantially understated the risks” of the dicamba herbicides and “failed entirely to acknowledge other risks”.
  • It dramatically understated the damage done during the 2018 growing season. It failed to collect accurate data of the damage the herbicide was doing to the agricultural landscape across the country. It failed to consider what would occur should farmers not follow the label instructions which were complex and onerous.
  • It failed to assess the economic costs of dicamba-resistant seeds, including monopoly issues as farmers felt increasingly compelled to purchase Monsanto’s seeds to avoid damage.
  • It failed to acknowledge the risk that the new use of dicamba herbicides would “tear the social fabric of farming communities.”

Even as the companies try to re-register dicamba, a decline in its efficacy on key herbicide-resistant weeds, particularly Palmer amaranth and waterhemp, has been observed (Item 3).

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Item 1


 Carey Gillam
U.S. Right to Know
3 June 2020

In a stunning rebuke of the Environmental Protection Agency, a federal court on Wednesday overturned the agency’s approval of popular dicamba-based herbicides made by chemical giants Bayer, BASF and Corteva Agrisciences. The ruling effectively makes it illegal for farmers to continue to use the product.

The ruling by the U.S. Court of Appeals for the Ninth Circuit found that the EPA “substantially understated the risks” of the dicamba herbicides and “failed entirely to acknowledge other risks.”

“The EPA made multiple errors in granting the conditional registrations,” the court ruling states.

Monsanto and the EPA had asked the court, if it did agree with the plaintiffs, not to immediately overturn the approvals of the weed killing products. The court said simply: “We decline to do so.”

The lawsuit was brought by the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America.

The plaintiffs accused the EPA of breaking the law in evaluating the impacts of a system designed by Monsanto, which was bought by Bayer in 2018, that has triggered “widespread” crop damage over the last few summers and continues to threaten farms across the country.

“Today’s decision is a massive win for farmers and the environment,” said George Kimbrell of the Center for Food Safety, lead counsel in the case. “It is good to be reminded that corporations like Monsanto and the Trump Administration cannot escape the rule of law, particularly at a time of crisis like this. Their day of reckoning has arrived.”

The court found that among other problems, 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 court also found that the EPA failed to acknowledge that restrictions it placed on the use of the dicamba herbicides would not be followed,  and it determined that 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 court said, the EPA entirely failed to acknowledge the risk that the new use of dicamba herbicides set up by Monsanto, BASF and Corteva would “tear the social fabric of farming communities.”

Farmers have been using dicamba herbicides for more than 50 years but traditionally avoided applying the herbicide during hot summer months, and rarely if ever over large swaths of land due to the well-known propensity of the chemical to drift far from intended target areas where it could damage crops, gardens, orchards, and shrubs.

Monsanto upended that restraint when it launched dicamba-tolerant soybean and cotton seeds a few years ago, encouraging farmers to spray new formulations of dicamba “over the top” of these genetically engineered crops during warm-weather growing months.

Monsanto’s move to create genetically engineered dicamba-tolerant crops came after its glyphosate-tolerant crops and widespread spraying of glyphosate created an epidemic of weed resistance across U.S. farmland.

Farmers, agricultural scientists and other experts warned Monsanto and the EPA that introducing a dicamba-tolerant system would not only create more herbicide resistance but would lead to devastating damage to crops that are not genetically engineered to tolerate dicamba.

Despite the warnings, Monsanto, along with BASF and Corteva AgriScience all gained approval from the EPA to market new formulations of dicamba herbicides for this widespread type of spraying. The companies claimed their new versions of dicamba would not volatize and drift as older versions of dicamba weed killing products were known to do.

But those assurances have proven false amid widespread complaints of dicamba drift damage since the introduction of the new dicamba-tolerant crops and the new dicamba herbicides. More than one million acres of crop damage was reported last year in 18 states, the court noted.

As predicted, there have been thousands of dicamba damage complaints recorded in multiple states. In its ruling, the court noted that in 2018, out of 103 million acres of soybeans and cotton planted in the United States, about 56 million acres were planted with seeds with Monsanto’s dicamba-tolerance trait, up from 27 million acres the year before in 2017.

In February, a unanimous jury awarded a Missouri peach farmer $15 million in compensatory damages and $250 million in punitive damages to be paid by Bayer and BASF for dicamba damage to his property.

Bayer issued a statement following the ruling saying it strongly disagreed with the court ruling and was assessing its options.

“The EPA’s informed science-based decision reaffirms that this tool is vital for growers and does not pose any unreasonable risks of off-target movement when used according to label directions,” the company said. “If the ruling stands, we will work quickly to minimize any impact on our customers this season.”

Corteva also said its dicamba herbicides were needed farmer tools and that it was assessing its options.

BASF called the court order “unprecedented” and said it “has the potential to be devastating to tens of thousands of farmers.”

Farmers could lose “significant revenue” if they are not able to kill weeds in their soybean and cotton fields with the dicamba herbicides, the company said.

“We will use all legal remedies available to challenge this Order,” BASF said.

An EPA spokesman said the agency was currently reviewing the court decision and “will move promptly to address the Court’s directive.”

The court acknowledged the decision could be costly for farmers who have already purchased and/or planted dicamba-tolerant seeds for this season and planned to use the dicamba herbicides on them because the ruling disallows that herbicide use.

“We acknowledge the difficulties these growers may have in finding effective and legal herbicides to protect their (dicamba-tolerant) crops…” the ruling states. “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.”


Item 2


Matthew Renda
Courthouse News Service
3 June 2020

(CN) — The Ninth Circuit dealt a blow to chemical company Monsanto Wednesday when it vacated the Environmental Protection Agency’s approval of the controversial pesticide dicamba, saying the agency failed to properly assess the risks of its widespread chemical use.

A three-judge panel unanimously vacated the EPA approval of dicamba, a herbicide that has caused issues not so much because of its toxicity to humans, but because of its tendency to drift when applied, thereby damaging neighboring crops.

“A review of the record shows that the EPA substantially understated the risks that it acknowledged,” U.S. Circuit Judge William Fletcher wrote. “The review also shows that the EPA entirely failed to acknowledge other risks.”

Dicamba was developed by Monsanto, now called Bayer Crop Science, in response to the trend of several weeds developing resistance to glyphosate, sold commercially as Round-Up. Scientists at Monsanto genetically engineered soybean and cotton seeds that were resistant to dicamba. That way when farmers planted those seeds, they could be sure that when they sprayed dicamba, it would only kill plants without the genetically engineered resistance.

While this worked in an isolated field scenario, the problem comes when dicamba drifts into neighboring fields and damages the cash crops of farmers who are not using dicamba seeds.

This problem led Arkansas and Missouri to ban the use of dicamba in 2017. A peach farmer from Cape Girardeau, Missouri, won a multimillion-dollar lawsuit against Monsanto in January after a judge agreed the chemical decimated the farmer’s orchard.

In 2018, though, farmers planted approximately 56 million acres of dicamba-resistant cotton and soybean seeds across the United States. What followed was a litany of complaints from farmers who did not use such seeds but whose crops were hurt by dicamba drift.

On Wednesday, the Ninth Circuit said the EPA dramatically understated the damage done during the 2018 growing season.

“The EPA’s conclusion that complaints to state departments of agriculture of dicamba damage could have either under-reported or over-reported the actual amount of damage is not supported by substantial evidence,” Fletcher wrote. “The record clearly shows that complaints understated the amount of dicamba damage.”

The court also blamed the agency for failing to try and collect data that would paint an accurate picture of the damage the herbicide was doing to the agricultural landscape across the country.

“The EPA refused to quantify or estimate the amount of damage caused by OTT application of dicamba herbicides, or even to admit that there was any damage at all,” Fletcher wrote.

Some estimates indicate that 3.6 million acres of farmland were damaged by the application of dicamba in 2017 alone. The court notes that the agency had access to this data and this number, but in its decision only passingly referenced allegations of damage.

The court also faulted the agency for not considering what could occur should farmers not follow the label instructions, a consideration they are required to make by law. With dicamba, the label instructions were complex and onerous and grew increasingly so with each passing growing season as complaints from farmers increased.

During a webinar hosted by the EPA in 2018, one farmer told the agency: “There doesn’t appear to be any way for an applicator to be 100% legal in their application.”

Farmers had to take into considerations like wind speed, time of day, precipitation forecasts and time from the planting of neighboring agricultural operations. A study conducted by Purdue University researchers said farmers in Indiana would have had a total of 47 hours during the entire season during which it would have been legal to spray dicamba.

Despite the extensive documentation of these issues, the EPA barely mentioned them during the approval process.

“The EPA nowhere acknowledged the evidence in the record 47 showing there had been substantial difficulty in complying with the mitigation requirements of earlier labels,” Fletcher wrote. “Nor did it acknowledge the likelihood that the additional mitigation requirements imposed by the 2018 label would increase the degree of non-compliance.”

The court also castigated the agency for failing to assess the economic costs of dicamba-resistant seeds, including monopoly issues as farmers feel increasingly compelled to purchase Monsanto’s seeds to avoid damage.

Finally, Fletcher and the other judges said the agency failed to consider the social costs due to the approval of the chemical.

‘It’s pitting neighbor against neighbor,” said University of Illinois weed scientist Aaron Hager in a 2018 edition of Progressive Farmer. “Farmers threatening other farmers. I’ve never seen this before over the use of technology.”

The court said the agency had ample evidence this was the case but chose to ignore it.

“The severe strain on social relations in farming communities where the new dicamba herbicides are being applied is a clear social cost, but the EPA did not identify and take into account this cost,” Fletcher wrote.

Fletcher was joined in the unanimous opinion by U.S. Circuit Judges Michael Hawkins and M. Margaret McKeown. All three were appointed by Bill Clinton.


Item 3


Emily Unglesbee
14 July 2020

ROCKVILLE, Md. (DTN) — With 60 million acres of Xtend cotton and soybeans and rising herbicide-resistance problems across the crop spectrum, dicamba use in U.S. agriculture is at or near record heights this year.

Yet the chemical’s future has never been less certain.

The most pressing question facing farmers and the industry is whether two companies, BASF and Bayer, will be able to get new registrations approved for XtendiMax and Engenia, two over-the-top dicamba herbicides whose registrations were vacated by the Ninth Circuit Court of Appeals in early June.

With no clear timeline from EPA on when it might make those decisions — nor any information on what new labels would look like — the Xtend cropping system is faced with uncertainty as farmers near the fall seed-buying season, with some opting to switch to other herbicide-tolerant platforms. “I like the weed control [of dicamba], but not the risk,” as one southeast Michigan farmer, Raymond Simpkins, put it.

Weeds themselves are evolving as a threat to the technology, as well.

Some scientists and farmers in the South and Midwest are noting a decline in the efficacy of dicamba on key herbicide-resistant weeds, particularly Palmer amaranth and waterhemp.

“It’s not a surprise,” said University of Tennessee Extension weed scientist Larry Steckel, who has documented Palmer amaranth populations surviving labeled rates of dicamba and 2,4-D. “We’ve been using dicamba on almost every acre in Tennessee since 2001 as a burndown. We’ve been exposing Palmer amaranth to dicamba for a long time, at fairly low rates.”

Despite these threats to the chemical’s future, Bayer is doubling down on its dicamba-tolerant trait system. The company is expecting final import approval any day for its XtendFlex soybeans, which will tolerate dicamba, glyphosate and glufosinate, and are poised for a 2021 commercialization. Later in the decade, the company is aiming to commercialize both 4-way and 5-way herbicide-tolerant corn that includes dicamba tolerance. Bayer also licenses its dicamba-tolerant trait broadly to other seed companies.

“We remain 100% committed to the Xtend system and that includes our seeds, our traits and our herbicides,” Alex Zenteno, Bayer dicamba product manager, told DTN. “We have not changed that stance.”


When a trio of federal judges handed down their decision to vacate three dicamba registrations on June 3, they made the unusual decision to immediately issue a mandate, which legally ended the registrations of Xtendimax, Engenia and FeXapan that same day. (Syngenta’s Tavium herbicide was not named in the decision). Within five days, EPA had issued cancellation orders for the three herbicides. The dicamba-tolerant Xtend trait, however, remains available for sale and planting, leaving growers with few legal options to treat Xtend acres next year.

Bayer and BASF have rushed to submit final data to the EPA for new registrations for their chemicals.

Bayer told DTN it has nearly completed all its data submissions to EPA supporting a new registration for XtendiMax. The company has also submitted a new tank additive for registration to EPA for use with the herbicide. Bayer’s Zenteno described it as a “volatility-reducing agent.”

BASF did not grant an interview to DTN on its registration efforts, and would only say in an emailed statement: “We have recently resubmitted the registration package for Engenia herbicide for EPA review that includes all relevant data needed by the agency to make a registration decision this fall.”

The company added that it has also submitted for registration, “a combination product that includes dicamba and other active ingredients for over-the-top use on soybeans and cotton.”

Corteva Agriscience, which owns a major competitive trait, 2,4-D-tolerant Enlist crops, licenses a dicamba formulation from Bayer, which it markets as FeXapan. In an emailed statement, Corteva told DTN that any future registration of FeXapan depends on a successful XtendiMax re-registration, but said it was “too early to speculate” on whether they would work to make FeXapan available in 2021.

Whether the three herbicides will be re-registered is only part of the 2021 dicamba equation, however. What those labels could look like is another critical question for farmers. A new registration for these dicamba herbicides would stand as EPA’s third attempt to revise their labels, which already contain some of the most complex use instructions of any pesticide.

When the three federal appellate judges vacated the original registrations, they took EPA to task for not fully evaluating the risks of in-season dicamba use. They specifically mentioned widespread off-target movement, complicated labels that inspired non-compliance, anti-competitive seed buying decisions as farmers sought to protect themselves from drift, and tension and conflict among farmers and their neighbors over alleged injury. See more here: https://www.dtnpf.com/…

Any future labels would presumably have to solve all those issues to avoid a similar legal challenge in the future, scientists and farmers have noted. “I don’t quite see how you could possibly issue new post-emergent use labels, and not run into the same problems,” said Bob Hartzler, Iowa State University weed scientist, whose state is grappling with widespread off-target dicamba crop injury this summer.

“If you look at that court decision, it doesn’t sound like dicamba has much of a leg to stand on for postemergence application,” agreed Sheffield, Illinois, farmer Matt Foes. “Going forward, I think people are looking at it for early postemergence or burndown scenarios.”

Bayer’s Zenteno declined to speculate on whether any new XtendiMax label might be limited to pre-emergence use or contain additional use restrictions. “Ultimately, it will be up to EPA to address the [Ninth Circuit] Court’s concerns,” she said. “And we feel that with all the information we’re submitting to EPA, they’ll be able to address the concerns the court has brought up,” she added.

Before the registrations were vacated in June, EPA officials had said they were aiming to make a re-registration decision on these herbicides by early fall, in time for farmers to buy seeds. It’s not clear if that timeline still stands, as EPA did not respond to DTN’s multiple requests for comments.


The existing formulations of dicamba are already poised to cost their registrants’ hundreds of millions of dollars. Bayer and BASF are appealing a $325 million jury judgement for dicamba damage to a peach orchard in Missouri, and Bayer has proposed committing $400 million to settle dicamba injury claims from 2015 through 2020.

Not surprisingly, the industry is working behind the scenes on newer formulations that could someday replace the very products Bayer and BASF are currently fighting to keep.

For the past few years, Corteva has been quietly testing a novel dicamba formulation with a handful of university scientists, with the aim of lower volatility. The company has submitted the formulation, described in public academic presentations as a dicamba-choline product, to EPA for review for registration.

“We will not speculate on the timing of completion of that review, nor on potential commercialization plans,” Corteva’s statement to DTN said.

Bayer is also working on new dicamba formulations, Zenteno told DTN.

“We have several formulations at different stages of the pipeline,” she said. “We do have some formulations already submitted with EPA, and others in product concept stages.” But for the 2021 season, XtendiMax, along with the newly submitted tank additive product, is the only product Bayer aims to have available, she added.

Another potential volatility-reducing tank additive for use with dicamba herbicides is under development at the University of Arkansas. The compound, a formulation of potassium borate, is greatly reducing volatility of dicamba herbicides in field trials so far, university Extension weed scientist Jason Norsworthy told DTN.


Zenteno said Bayer experienced “an incredible outpouring of support” from members of the agricultural community for the dicamba-tolerant crop system after the court’s ruling on June 3. Seven national commodity and ag trade groups, including the American Soybean Association, National Cotton Council and National Corn Growers Association, wrote letters of information and support to the court, known as amici curiae, defending EPA and the use of dicamba. Bayer also heard “a lot of need and support” from farmers for continued in-season dicamba use, Zenteno said.

In interviews with farmers, DTN found more mixed responses, with varying attitudes illustrating the stark disagreements over dicamba use that the Ninth Circuit Court highlighted in its decision.

“It really depends on who you talk to,” pointed out Iowa State University field agronomist Meaghan Anderson. “There are farmers who believe we will not survive if we don’t have dicamba available for post-emergent applications. And then there is the other group who have hundreds of acres of injured soybeans from field end to field end, and they’re saying how can we survive with this technology out there?”

Some farmers told DTN the court decision was a relief in some ways, given the chemicals’ four-year history of volatility risks.

“I’m glad to see dicamba exiting as a management option,” said Mark Nowak, who grows corn and soybeans in Faribault County, Minnesota. “The dicamba drift that hit my field [this year] went a half a mile. That’s too much risk for the industry to tolerate.”

Some farmers are already planning on moving to other herbicide-tolerant platforms, given the court decision. “I’m afraid we’ve lost dicamba in cotton and beans for the near future,” said Keith Peters, who grows corn, wheat and soybeans south of Columbus, Ohio. “I’m probably going to switch to Liberty[Link].”

Others were conflicted, even if they didn’t like the way dicamba-tolerant technology had divided the industry.

“Part of me was happy they pulled the labels, because it was making it really difficult to be a good neighbor,” explained Kyle Samp, who farms in Randolph County, Missouri. “But I’m pretty worried about how this affects the future not just for new chemistry but for existing chemistry. I’ve had to hoe beans in the past, and I would really like to avoid doing that in the future.”

Samp’s fear was echoed by many. Even in Canada, the sudden end to the three dicamba registrations — which only applied to U.S. growers — has farmers uneasy, said Ontario farmer Dan Petker. “We aren’t sure how our pesticide registration agency will look at this,” he noted. “Enlist E3 beans will fast become the norm if anything happens to dicamba here.”

Some wonder if dicamba use in other crops will come under scrutiny. “They vacated the soybean labels; they might come after the corn labels next,” said Illinois’s Foes. “We’re seeing increased use in corn recently and therefore, more damage from it.”

For farmers who haven’t seen many dicamba problems in their region, the court decision seems unfair and alarming. “If a court can cancel one label on a chemical we thought was okay, what are they going to do on some others that have more known issues or less public trust?” wondered Justin Honebrink, a farmer from Deer Creek, Minnesota. “It feels like this is just the beginning and we are going to have a lot more options being pulled out from under us just as we get ready to use them.”

But others expressed confidence that companies will succeed with new registrations. “If I had to guess, I’d say dicamba will be re-registered,” said Charles Williams, who farms near Crawfordsville, Arkansas, where dicamba use is banned after May 25. He’s betting on Bayer’s future traits, which will widen the post-emergence chemical options. “This year I’m growing some XtendFlex soybeans for increase,” he said of Bayer’s forthcoming 3-way herbicide-tolerant soybean stack.

And for some, their preferred soybean genetics still outweigh herbicide options. “While we plant Xtend beans, because that’s where we believe some of the best genetics are, we do not spray dicamba — it just isn’t worth the risk,” said Genny Haun, who farms near Kenton, Ohio. “So any decision regarding [registrations] does not have much of an impact on our operation.”


As farmers fret and the EPA evaluates new dicamba registrations once again, scientists are finding that the target of these herbicides — weeds — are evolving in problematic ways.

This summer, many alleged dicamba drift cases are quickly turning into suspected resistance cases for Tennessee’s Steckel. “It isn’t hard to go from a dicamba drift case to fields nearby and see live and dead Palmer amaranth out there,” he said. “It seems like they are recovering quicker from dicamba applications than ever before. Instead of taking two weeks, it’s closer to 10 days before they start putting on two inches of growth a day again.”

This spring, Steckel found that pigweed dicamba escapes collected in his state in 2019 could survive a labeled rate of dicamba herbicides. Now samples he sent to Texas Tech University are showing the ability to survive 2.5 times the labeled rate of dicamba.

“It is definitely translating to the field,” he said. Some Tennessee cotton growers are finding that, even after burndown and preemergence herbicide use, they have to follow two postemergence dicamba applications in cotton fields with a third postemergence application of glufosinate in order to clean up weeds, with total weed control costs nearing $90 per acre, he said.

Farther north, weed scientists are watching waterhemp escapes with growing alarm.

Iowa State University weed scientist Prashant Jha did a survey of waterhemp populations from across Iowa in corn and soybean fields last year. Greenhouse tests show that some of the populations can survive labeled rates of both dicamba and 2,4-D.

When University of Missouri weed scientists evaluated waterhemp samples from four states this winter — Illinois, Indiana, Missouri and Nebraska — they found that 14% were able to survive a full rate of dicamba herbicides. For some of those waterhemp populations, even a second full rate of dicamba did not provide full control.

In Indiana, the pattern emerging is clear, said Purdue University Extension weed scientist Bill Johnson, who is seeing some waterhemp plants re-growing after dicamba sprays, especially when plants exceed label heights at application.

Up to two applications of dicamba are now required to control those populations. “These are populations we might have killed [with one spray] two years ago, and this year, we’re not,” he said.

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