The Dicamba Drifting Crisis

Unsurprisingly, this decision had serious consequences: the approved herbicides turned out to be even more volatile than older dicamba mixes, which aggravated the drifting problem. In 2017, farmers planted about nearly 90 million acres of soybeans. Of those, 22 million acres of dicamba-resistant. Scientists estimated that 3.6 million acres of non-resistant soybeans alone were damaged by dicamba drift that year — nearly four percent of all soybeans in the country. Other crops, like peaches, grapes and tomatoes, were also damaged.

In response to the crisis, states designed regulations to try and limit dicamba drift, setting rules that restricted spraying in high temperatures and windy conditions. Farmers also tried to avoid damage by buying Monsanto’s resistant seeds themselves: nearly 60 percent of soybeans in the country were dicamba resistant in 2019. Even with these changes, 2019 was a record year for dicamba complaints in several states, with nearly all non-GMO soybeans in many counties showing damage. Foresters in parts of the Midwest also started to note damage to wild trees.

Dicamba drift also brought serious conflict to farming communities across the country. Neighbors who didn’t plant resistant seeds lost thousands in revenue, and formerly friendly neighbors fought over who was responsible for the damage. One Arkansas farmer even murdered a neighbor who confronted him when his dicamba damaged an orchard.

Legal Action

A number of farmers pursued lawsuits against Bayer (which purchased Monsanto in 2018) and BASF for pushing the use of dicamba. They claimed no responsibility for the dicamba damage, arguing it couldn’t be held liable for how farmers applied the chemical.

The owners of a peach orchard, Bader Farms, were the plaintiffs of the first suit to go to trial. In court, the prosecution unsealed internal documents showing Monsanto anticipated the drift and intended to use it as a fear-based sales strategy to get farmers to buy resistant seeds. Moreover, the documents encouraged Monsanto inspectors responding to complaints to seek out other reasons crops might have been damaged and to only investigate claims from customers in good financial standing. These practices delayed insurance payments and helped bog down legal cases.

Although Bayer and BASF lawyers argued in court that it was impossible to prove that the damage had come from dicamba and that the EPA had validated the safety of the products, the jury still found both companies guilty of negligence given the unsealed evidence. The jury awarded Bader farms $265 million in total damages, which Bayer later sought to appeal.

The End of Dicamba?

Meanwhile, other suits went after the chemical itself. A number of environmental groups filed against the EPA’s registration of the chemical, arguing the agency had failed to properly vet its use because it skipped independent review. In a major victory, judges of the Ninth Circuit revoked the approval of dicamba-based herbicides for over the top spraying, making it illegal to sell, distribute, and use the herbicides.

Because the ruling came in June — after most farmers had planted their dicamba-resistant soybeans — the Secretary of Agriculture and conventional agriculture lobbies criticized the ruling, asking for an allowance that farmers be able to use their existing stock. The EPA’s final cancellation order for the three dicamba-based herbicides allows farmers to use already-purchased chemicals through the end of July, but bans further sales. Plaintiffs in the case — the Center for Food Safety and the Center for Biological Diversity — filed a motion to stop all spraying now and hold the EPA in contempt of court, but it’s unclear whether the motion will be granted.

Bayer — already beleaguered from a slew of lawsuits around the safety of the main ingredient in its product Roundup — stands to lose nearly $100 million in sales this year from the decision, and says it plans to appeal. Although analysts disagree about whether or not an appeal is likely to be granted, it may not matter; the herbicides are up for renewal in 2021 if they can bring a different formulation or independent data that shows the chemicals are safe. To that end, Bayer has already signaled its intention to keep pushing forward on its registration for next year. This means the door on dicamba is hardly closed, and while settling the thousands of existing lawsuits in progress could cost Bayer and BASF billions, there’s still enough financial incentive for the companies to keep pushing to register dicamba in the future.

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