Late Wednesday evening, Bayer Ag (formerly Monsanto) and other crop protection manufacturers, were blocked by the 9th Circuit U.S. Court of Appeals from selling dicamba-based weed killers in the United States. Due to the timing of this decision, the future use of the herbicide is still unknown for farmers in the 2020 growing season.
A three-judge panel in San Francisco declared that the U.S. Environmental Protection Agency “substantially understated risks that it acknowledged and failed entirely to acknowledge other risks,” according to court documents. The ruling mentions three out of four dicamba products on the market — Monsanto’s XtendiMax; DuPont’s FeXapan; and BASF’s Engenia. The only one not mentioned was Syngenta’s Tavium product.
Four environmental activist groups — National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America — filed the lawsuit in 2018 in an attempt to force the EPA to cancel the approval of the weed killers, claiming volatility to surrounding crops and wildlife.
In a statement, Bayer said, “We strongly disagree with the ruling and are assessing our options. If the ruling stands, we will work quickly to minimize any impact on our customers this season. Our top priority is making sure our customers have the support they need to have a successful season.” Bayer has created a new website that they will keep updated with the latest information.
The EPA, BASF, and Corteva are currently reviewing the court decision and have yet to make an announcement.
However, the ruling only applies to the current registration, which expires December 20, 2020. Bayer was already working to obtain a new EPA registration for the weed killer for 2021 and beyond.
There are still many unknowns for many farmers, many of whom have already purchased the product or planned on using it for the 2020 growing season. The court did acknowledged that this could be costly for farmers, through no fault of their own.
“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.”
The Center for Food Safety, a nonprofit that has long pushed back against biotechnology in agriculture, was the lead counsel for the group of plaintiffs. The center’s George Kimbrell said, “Today’s decision is a massive win for farmers and the environment. It is good to be reminded that corporations like Monsanto and the Trump Administration cannot escape the rule of law.”
U.S. Secretary of Agriculture Sonny Perdue said, “Producers need all the tools in their toolbox to produce the world’s food, fuel, and fiber, and USDA re-affirms its support for EPA’s science-based process for assessing and managing ecological risks, balanced against the agricultural and societal benefits of crop protection tools. USDA stands ready to assist its federal partners in meeting that goal. Farmers across America have spent hard earned money on previously allowed crop protection tools. I encourage the EPA to use any available flexibilities to allow the continued use of already purchased dicamba products, which are a critical tool for American farmers to combat weeds resistant to many other herbicides, in fields that are already planted. Unfortunately, the Ninth Circuit has chosen to eliminate one of those tools.”
