Federal court puts an end to agriculture use of the pesticide dicamba

A federal court has revoked approval of the weed-killing pesticide dicamba. The ruling means farmers may not have access to the popular pesticide during the upcoming growing season.

The drift-prone pesticide has damaged millions of acres of crops and wild plants every year since the Environmental Protection Agency (EPA) first approved it in 2017 for spraying on cotton and soybean crops genetically engineered by Monsanto (now Bayer) to survive what would otherwise be a deadly dose. 

The U.S. District Court of Arizona ruling in Tucson overturns the EPA’s 2020 reapproval of the pesticide, which included additional application restrictions that have nonetheless failed to prevent the ongoing drift damage.

“This is a vital victory for farmers and the environment,” said George Kimbrell, Center for Food Safety’s (CFS) legal director and counsel. “Time and time again, the evidence has shown that dicamba cannot be used without causing massive and unprecedented harm to farms and endangering plants and pollinators. The Court resoundingly re-affirmed what we have always maintained: the EPA’s and Monsanto’s claims of dicamba’s safety were irresponsible and unlawful.”

Since dicamba was approved for “over-the-top” spraying, its use has increased twentyfold. The EPA estimates 65 million acres (two-thirds of soybeans and three-fourths of cotton) are dicamba-resistant, with roughly half that acreage sprayed with dicamba, an area nearly the size of Alabama.  Farmers plant much of the unsprayed crops “defensively ” to avoid dicamba drift damage.

In the decision, the court canceled dicamba’s over-the-top use, holding that EPA violated FIFRA’s public input requirement before the approval. According to the court, this violation is “very serious,” mainly because the Ninth Circuit previously held that EPA failed to consider the severe risks of over-the-top dicamba in issuing the prior registration. 

The court outlined the massive damage to stakeholders who were deprived of their opportunity to comment, such as growers that do not use over-the-top dicamba and suffered significant financial losses and states that repeatedly reported landscape-level damage yet, in the same 2020 decision, lost the ability to impose restrictions more significant than those imposed by the federal government without formal legislative and rule-making processes. As a result, the court found “the EPA is unlikely to issue the same registrations” again after considering these stakeholders’ concerns.

The court also criticized the EPA’s assessment of the widespread harm caused by the 2020 registrations. Monsanto and the EPA claimed this “over-the-top” new use of dicamba would not cause harm due to its new restrictions on use. But the court found the EPA’s “circular approach to assessing risk, hinging on its high confidence that control measures will all but eliminate offsite movement, [led] to its corresponding failure to assess costs from offsite movement.” And instead, just as independent researchers had warned, the restrictions failed, and dicamba continued to vaporize and drift.

“I hope the court’s emphatic rejection of the EPA’s reckless approval of dicamba will spur the agency to finally stop ignoring the far-reaching harm caused by this dangerous pesticide,” said Nathan Donley, environmental health science director at the Center for Biological Diversity. “Endangered butterflies and bee populations will keep tanking if the EPA keeps twisting itself into a pretzel to approve this product just to appease the pesticide industry.”

Background
This is the second time a federal court has found that the EPA unlawfully approved dicamba. An earlier case resulted in a court of appeals overturning the agency’s prior approval of the pesticide. The EPA reapproved the same pesticide use in 2020, leading to the current lawsuit.

The ruling outlaws dicamba products sprayed over emerged soybeans and cotton crops that are genetically engineered to withstand the spray. Since 2017, the pesticide has caused drift damage to millions of acres of non-genetically engineered soybeans and orchards, gardens, trees, and other plants on a scale unprecedented in the history of U.S. agriculture. The pesticide also threatens dozens of imperiled species, including pollinators like monarch butterflies and rusty-patched bumblebees.

The EPA admitted in a 2021 report that its application restrictions to limit dicamba’s harm had failed, and the pesticide continued to cause massive drift damage to crops.

The U.S. Department of Agriculture estimates that up to 15 million acres of soybeans have been damaged by dicamba drift. Beekeepers in multiple states have reported sharp drops in honey production due to dicamba drift suppressing the flowering plants their bees need for sustenance. 

The plaintiffs are the National Family Farm Coalition, the Pesticide Action Network, the Center for Food Safety, and the Center for Biological Diversity. Legal counsel from the Center for Food Safety and Biological Diversity represents them.

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