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EPA Dicamba Decision Could Be Legal Ammunition, Challengers Say


Bloomberg Environment

Posted Nov. 1, 2018, 3:02 PM

The EPA’s decision to allow a weedkiller on the market for two more years could strengthen the legal case of farmers suing Bayer AG who say the weedkiller damages crops, attorneys representing growers said.

The Environmental Protection Agency announced Oct. 31 that it has renewed the approval of herbicides containing dicamba, a chemical prone to drifting off fields and onto neighboring acres, where they can cause injury to soybeans, vegetables, trees, and other vegetation.

Normal EPA re-registration intervals are 15 years, indicating that the agency may want to monitor dicamba’s impacts on neighboring crops and trees in the near term.

Although the EPA gave Bayer—formerly Monsanto Co.—and other manufacturers BASF SE and DowDuPont the green light to continue selling their weedkillers, it set some additional restrictions. Notably, only people who have undergone specialized training and certification can apply dicamba, and spraying is banned 45 days after planting soybeans and 60 days after planting cotton.

These restrictions—along with additional limits to use the EPA set last fall—confirms that the pesticides were not ready for approval when they came to market in early 2017, Paul Lesko, an attorney with Peiffer Wolf Carr & Kane in St. Louis, told Bloomberg Environment.

“It sends the message that the EPA is seeing something it doesn’t like,” Lesko, who represents farmers in multidistrict litigation against Monsanto, said.

More than 100 soybean growers, peach farmers, nursery owners, and others have filed lawsuits against Monsanto, which Bayer purchased June 7, arguing that the company caused significant injury to crops when it began selling its Xtendimax herbicide in 2017, and is violating antitrust laws by forcing growers to plant Monsanto’s costly genetically engineered seeds that withstand dicamba.

‘Confidence’ In Dicamba

Michael Smith, another attorney with Dover Dixon Horne PLLC in Little Rock, Ark., said the EPA’s announcement shows that there was a problem with the initial approval.

“You could conclude, it would be a reasonable conclusion, that the previous requirements or applications were inadequate,” he told Bloomberg Environment.

The agency, which registers pesticides and approves the instructions on labels for their use, is allowing farmers to spray dicamba herbicides through Dec. 20, 2020. EPA initially approved the herbicides for two years in 2016. The extension of the label for another two years also suggests that the EPA may need to make additional changes down the road, Lesko said.

Monsanto took dicamba, a 1960s-era weedkiller, and reformulated the chemical mixture to be less volatile, or prone to evaporate. University extension scientists dispute this, saying that the company’s Xtendimax herbicide and BASF’s Engenia are very similar to older versions of dicamba in their volatility and tendency to drift off-target.

Bayer officials dispute that their products easily volatilize and disagree that the EPA’s decision indicates a weakness in the product’s design.

The announcement from the agency “certainly demonstrates confidence from the EPA,” Ryan Rubischko, dicamba lead for Bayer, told reporters on a Nov. 1 call.

Bayer is involved in 13 academic collaborations to further study how farmers can use the products to minimize problems and to “reaffirm the science of this low-volatility product,” he said

The company claims 95 percent of growers surveyed have been satisfied with the weed control of Xtendimax.

Not Typical Path?

Although many farmers say the products help them fight stubborn weeds, hundreds of growers have faced crop damage linked to dicamba, which can evaporate and settle miles away, impacting both crops and natural greenery.

The Center for Food Safety, an organization suing the EPA for approving the dicamba herbicides, criticized the agency for not following the typical path for regulations.

“EPA re-approved the pesticide without any formal public notice and comment on a proposed decision, or apparently any explanatory rationale for it, releasing just a revised website statement,” the organization stated in a press release.–

FREE Consultation | Farmers & Growers With Crop Or Plant Damage

Dicamba Drift Lawyers at Peiffer Wolf Carr & Kane and Arkansas attorneys Michael Smith and Paul James are fighting on behalf of farmers and landowners to seek maximum compensation for the damages suffered due to Dicamba. If you suspect that your crops or plants have been damaged by dicamba, contact Peiffer Wolf Carr & Kane by filling out a Contact Form or by calling 314-833-4826 for a FREE Consultation.

Also, you can reach Paul Lesko directly at 314-833-4826 or at [email protected].


About Peiffer Wolf Carr & Kane, APLC

Peiffer Wolf Carr & Kane is a nationwide litigation law firm that represents individuals and entities that have been the victims of negligence, fraud or the misconduct of powerful interests. We are smart, experienced, and dedicated professionals who work tirelessly for our clients and take pride in the pursuit of justice on their behalf. Too often the powerful interests in our society run over the rights of ordinary people. We do our best to restore that balance.