SAN FRANCISCO (Legal Newsline) – A federal appeals court has sided with anti-pesticide activists in striking down the EPA’s approval of three dicamba-based products.
The U.S. Court of Appeals for the Ninth Circuit issued its ruling June 3 in favor of the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity and Pesticide Action Network North America.
The court found that the Environmental Protection Agency substantially understated some risks and failed to acknowledge others when it approved the products in 2018.
“We are aware of the practical effects of our decision,” Judge William Fletcher wrote. “Among other things, we are aware of the adverse impact on growers who have already purchased DT soybean and cotton seeds and dicamba products for this year’s growing season, relying on the availability of the herbicides for post-emergent use.
“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.”
Monsanto, which is owned by Bayer CropScience intervened to defend the EPA’s decision. It, Corteva and BASF are the companies whose products are at issue.
Dicamba can kill broadleaf plants, bushes and trees and can drift if the wind blows while it is applied to weeds. It can also drift during hot temperatures.
Monsanto has developed soybean and cotton crops that are resistant to dicamba, a response to many weeds developing a resistance to glyphosate-containing Roundup products that are now the subjects of multibillion-dollar litigation.
In 2016, the EPA approved dicamba products for use on dicamba-tolerant soybeans and cotton. Two years later, it granted second two-year extensions for them.
Bayer’s product is XtendiMax, Corteva’s is FeXapan and BASF’s is Engenia.
The EPA understated three risks with those products, the Ninth Circuit ruled. It understated how much dicamba herbicide had been sprayed for the 2018 growing season, understated from formal complaints how much damage it caused and characterized damages as “potential” and “alleged,” the court ruled.
It failed to acknowledge three other risks, the Ninth Circuit said:
-That record evidence showed restrictions listed on a 2018 label would not be followed;
-That registrations would have anti-competitive economic effects in the soybean and cotton industries; and
-That dicamba use would “tear the social fabric of farming communities.”