Big Ag groups argue court cannot tell EPA when to ban dicamba

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The heaviest of Big Ag’s heavy hitters told a federal court it should not try to stop GMO cotton and soybean farmers from using illegal dicamba weed killers through the end of July, despite the court’s order earlier this month for an immediate ban.

Six national trade associations, all of which have long-standing financial ties to Monsanto and the other companies selling the dicamba products in question,  filed a brief on Wednesday with the U.S. Court of Appeals for the Ninth Circuit urging the court not to try to interfere with the Environmental Protection Agency’s (EPA) announcement that farmers could continue to use the dicamba products through July 31.

They also asked the court not to hold the EPA in contempt as has been requested by the groups that won the June 3 court order issuing the ban.

“America’s soybean and cotton growers would risk severe financial harm if prevented from using Dicamba Products this growing season,” states the brief filed by the American Farm Bureau Federation, American Soybean Association, National Cotton Council of America, National Association of Wheat Growers, National Corn Growers Association, and National Sorghum Producers.

Separately, CropLife America, an influential lobbyist for the agrichemical industry, filed a brief  stating it wanted to provide “Helpful Information to the Court.” CropLife stated in the filing that the court has no authority over how the EPA proceeds to cancel the use of pesticide products such as dicamba weed killers.

The moves are but the latest in a dramatic flurry of events that followed the Ninth Circuit ruling, which found that the EPA violated the law when it approved dicamba products developed by Monsanto – owned by Bayer AG, as well as products sold by BASF, and DuPont, owned by Corteva Inc.

The court ordered an immediate ban on use of each of the companies’ products, finding that the EPA “substantially understated the risks” those products pose to farmers growing crops other than genetically engineered cotton and soy.

The EPA appeared to flout the order, however, when it told the cotton and soy farmers they could continue to spray the herbicides in question through July 31.

The Center for Food Safety (CFS) and other groups that originally took the EPA to court over the matter went back to court last week, demanding that the 9th Circuit hold the EPA in contempt. The court is now considering that motion.

“EPA and the pesticide companies have tried to confuse the issue and try to intimidate the Court,” said George Kimbrell, CFS legal director and counsel for the petitioners. “The Court held the product uses unlawful and EPA’s manipulations cannot change that.”

The order banning the company’s dicamba products has triggered an uproar in farm country because many soybean and cotton farmers planted millions of acres of genetically altered dicamba-tolerant crops developed by Monsanto with the intent of treating weeds in those fields with the dicamba herbicides made by the three companies. The crops tolerate the dicamba while the weeds die.

The farm lobby groups said in their brief that 64 million acres were planted with the dicamba-tolerant seeds this season. They said if those farmers cannot spray over their fields with the dicamba products they will be “largely defenseless against weeds resistant to other herbicides, causing
potentially significant financial consequences from yield losses.”

When Monsanto, BASF and DuPont/Corteva rolled out their dicamba herbicides a few years ago they  claimed the products would not volatize and drift into neighboring fields as older versions of dicamba weed killing products were known to do. But those assurances proved false amid widespread complaints of dicamba drift damage.

More than one million acres of crops not genetically engineered to tolerate dicamba were reported damaged last year in 18 states, the federal court noted in its ruling.

“The EPA’s mission is to protect human health and the environment…” said National Family Farm Coalition board president Jim Goodman. “Their contempt for this mission could not be more clearly expressed than their flagrant disregard of the Ninth Circuit Court of Appeals’ ruling to stop over-the-top applications of dicamba immediately to prevent millions of acres of farmers’ crops from being destroyed.”

In February, a Missouri jury ordered Bayer and BASF to pay a peach farmer $15 million in compensatory damages and $250 million in punitive damages for dicamba damage to the farmer’s orchards. The jury concluded that  Monsanto and BASF conspired in actions they knew would lead to widespread crop damage because they expected it would increase their own profits

Panicked chemical giants seek leeway in court ban on their weed killers

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Citing an “emergency,” chemical giants BASF and DuPont have asked a federal court to allow them to intervene in a case in which the court earlier this month ordered their dicamba herbicides to be immediately banned along with a dicamba product made by Monsanto owner Bayer AG.

The action by the chemical companies follows a June 3 ruling by the U.S. Court of Appeals for the Ninth Circuit that said the Environmental Protection Agency (EPA) had violated the law when it approved the dicamba products developed by Monsanto/Bayer, BASF and DuPont, owned by Corteva Inc.

The court ordered an immediate ban on use of each of the company’s dicamba products, finding that the EPA “substantially understated the risks” of the dicamba herbicides and “failed entirely to acknowledge other risks.”

The EPA flouted that order, however, telling farmers they could continue to spray the herbicides in question through the end of July.

The consortium of farm and consumer groups that originally filed the case against the EPA rushed back to court last week, asking for an emergency order holding the EPA in contempt.  The court gave the EPA until the end of the day Tuesday, June 16, to respond.

Uproar in Farm Country

The order banning the companies’ dicamba products has triggered an uproar in farm country because many soybean and cotton farmers planted millions of acres of dicamba-tolerant crops developed by Monsanto with the intent of treating weeds in those fields with the dicamba herbicides made by the three companies.

The “dicamba crop system” provides for farmers to plant their fields with dicamba-tolerant crops, which they can then spray “over-the-top” with dicamba weed killer. The system has both enriched the companies selling the seeds and chemicals and and helped farmers growing the special dicamba-tolerant cotton and soy deal with stubborn weeds that are resistant to glyphosate-based Roundup products.

But for the large number of farmers who do not plant the genetically engineered dicamba-tolerant crops, widespread use of dicamba herbicides has meant damage and crop losses because dicamba tends to volatize and drift long distances where it can kill crops, trees and shrubs that are not genetically altered to withstand the chemical.

The companies claimed their new versions of dicamba would not volatize and drift as older versions of dicamba weed killing products were known to do. But those assurances proved false amid widespread complaints of dicamba drift damage. More than one million acres of crop damage was reported last year in 18 states, the federal court noted in its ruling.

Many farmers initially celebrated the court ruling and were relieved that their farms and orchards would be spared this summer from the dicamba damage they’ve experienced in prior summers. But the relief was short-lived when the EPA said it would not immediately enforce the court-ordered ban.

In a filing made Friday, BASF pleaded with the court not to enforce an immediate ban and told the court that it will need to close a manufacturing facility in Beaumont, Texas, that currently “operates 24 hours a day nearly continuously through the year” if it is not able to produce its dicamba herbicide brand called Engenia. BASF has spent $370 million in recent years improving the plant and employs 170 people there, the company said.

Noting “significant investments” in its product, BASF also told the court that there is enough of its product currently throughout its “customer channel” to treat 26.7 million acres of soybeans and cotton.  BASF has an additional $44 million worth of the Engenia dicamba product in its possession, enough to treat 6.6 million acres of soybeans and cotton, the company said.

DuPont/Corteva made a similar argument, telling the court in its filing that the ban “directly harms” the company “as well as the many farmers across this country that are in the midst of the growing season.”  It will damage the company’s “reputation” if its herbicide is banned, the company told the court.

Moreover, DuPont/Corteva expects to generate “significant revenues” from the sales of its dicamba herbicide, called FeXapan and will lose that money if the ban is enforced, the company said.

Monsanto was active in the case supporting the EPA approvals prior to the ruling, but both BASF and DuPont asserted wrongly that the court case applied only to Monsanto’s products and not to theirs. The court made it clear, however, that the EPA illegally approved the products made by all three companies.

Led by the Center for Food Safety,  the petition against the EPA was also brought by the National Family Farm Coalition, Center for Biological Diversity, and Pesticide Action Network North America.

In asking the court to find the EPA in contempt, the consortium warned of the crop damage to come if the dicamba products are not banned immediately.

“EPA cannot get away with allowing the spraying of 16 million more pounds of dicamba and resulting damage to millions of acres, as well as significant risks to hundreds of endangered species,” the consortium said in its filing. “Something else is at stake too: the rule of law. The Court must act to prevent injustice and uphold the integrity of the judicial process. And given the blatant
disregard EPA showed for the Court’s decision, Petitioners urge the Court to hold EPA in contempt.”