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.”

What Bill Gates Isn’t Telling You About GMOs

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Related reporting by U.S. Right to Know:

As the big food companies announce plans to label genetically engineered foods in the U.S., we take a closer look at pro and con arguments about the controversial food technology. Two recent videos illuminate the divide over GMOs.

In January, Bill Gates explained his support for genetic engineering in an interview with the Wall Street Journal’s Rebecca Blumenstein:

“What are called GMOs are done by changing the genes of the plant, and it’s done in a way where there’s a very thorough safety procedure, and it’s pretty incredible because it reduces the amount of pesticide you need, raises productivity (and) can help with malnutrition by getting vitamin fortification. And so I think, for Africa, this is going to make a huge difference, particularly as they face climate change …

The US, China, Brazil, are using these things and if you want farmers in Africa to improve nutrition and be competitive on the world market, you know, as long as the right safety things are done, that’s really beneficial. It’s kind of a second round of the green revolution. And so the Africans I think will choose to let their people have enough to eat.”

If Gates is right, that’s great news. That means the key to solving the hunger problem is lowering barriers for companies to get their climate-resilient, nutrition-improved genetically engineered crops to market.

Is Gates right?  

Another video released the same week as Gates’ WSJ interview provides a different perspective.

The short film by the Center for Food Safety describes how the state of Hawaii, which hosts more open-air fields of experimental genetically engineered crops than any other state, has become contaminated with high volumes of toxic pesticides.

The film and report explain that five multinational agrichemical companies run 97% of GE field tests on Hawaii, and the large majority of the crops are engineered to survive herbicides. According to the video:

“With so many GE field tests in such a small state, many people in Hawaii live, work and go to school near intensively sprayed test sites. Pesticides often drift so it’s no wonder that children and school and entire communities are getting sick. To make matters even worse, in most cases, these companies are not even required to disclose what they’re spraying.”

If the Center for Food Safety is right, that’s a big problem. Both these stories can’t be right at the same time, can they?

Facts on the ground

Following the thread of the Gates’ narrative, one would expect the agricultural fields of Hawaii – the leading testing grounds for genetically engineered crops in the U.S. – to be bustling with low-pesticide, climate-resilient, vitamin-enhanced crops.

Instead, the large majority of GMO crops being grown on Hawaii and in the US are herbicide-tolerant crops that are driving up the use of glyphosate, the main ingredient in Monsanto’s Roundup and a chemical the World Health Organization’s cancer experts classify as “probably carcinogenic to humans.”

In the 20 years since Monsanto introduced “Roundup Ready” GMO corn and soy, glyphosate use has increased 15-fold and it is now “the most heavily-used agricultural chemical in the history of the world”, reported Douglas Main in Newsweek.

The heavy herbicide use has accelerated weed resistance on millions of acres of farmland. To deal with this problem, Monsanto is rolling out new genetically engineered soybeans designed to survive a combination of weed-killing chemicals, glyphosate and dicamba. EPA has yet to approve the new herbicide mix.

But Dow Chemical just got the green light from a federal judge for its new weed-killer combo of 2,4D and glyphosate, called Enlist Duo, designed for Dow’s Enlist GMO seeds. EPA tossed aside its own safety data to approve Enlist Duo, reported Patricia Callahan in Chicago Tribune.

The agency then reversed course and asked the court to vacate its own approval – a request the judge denied without giving reason.

All of this raises questions about the claims Bill Gates made in his Wall Street Journal interview about thorough safety procedures and reduced use of pesticides.

 Concerns grow in Hawaii, Argentina, Iowa

Instead of bustling with promising new types of resilient adaptive GMO crops, Hawaii is bustling with grassroots efforts to protect communities from pesticide drift, require chemical companies to disclose the pesticides they are using, and restrict GMO crop-growing in areas near schools and nursing homes.

Schools near farms in Kauai have been evacuated due to pesticide drift, and doctors in Hawaii say they are observing increases in birth defects and other illnesses they suspect may be related to pesticides, reported Christopher Pala in the Guardian and The Ecologist.

According to the American Academy of Pediatrics, prenatal and early-life pesticide exposures are linked to childhood cancers, decreased cognitive function, behavioral problems and birth defects.

In Argentina – the world’s third largest producer of GMO crops – doctors are also raising concerns about higher than average rates of cancer and birth defects they suspect are related to pesticides, reported Michael Warren in The Associated Press.

Warren’s story from 2013 cited evidence of “uncontrolled pesticide applications”:

“The Associated Press documented dozens of cases around the country where poisons are applied in ways unanticipated by regulatory science or specifically banned by existing law. The spray drifts into schools and homes and settles over water sources; farmworkers mix poisons with no protective gear; villagers store water in pesticide containers that should have been destroyed.”

In a follow-up story, Monsanto defended glyphosate as safe and called for more controls to stop the misuse of agricultural chemicals, and Warren reported:

“Argentine doctors interviewed by the AP said their caseloads – not laboratory experiments – show an apparent correlation between the arrival of intensive industrial agriculture and rising rates of cancer and birth defects in rural communities, and they’re calling for broader, longer-term studies to rule out agrochemical exposure as a cause of these and other illnesses.”

Monsanto spokesman Thomas Helscher responded, “the absence of reliable data makes it very difficult to establish trends in disease incidence and even more difficult to establish causal relationships. To our knowledge there are no established causal relationships.”

The absence of reliable data is compounded by the fact that most chemicals are assessed for safety on an individual basis, yet exposures typically involve chemical combinations.

 ‘We are breathing, eating, and drinking agrochemicals’

A recent UCLA study found that California regulators are failing to assess the health risks of pesticide mixtures, even though farm communities – including areas near schools, day care centers and parks – are exposed to multiple pesticides, which can have larger-than-anticipated health impacts.

Exposures also occur by multiple routes. Reporting on health problems and community concerns in Avia Teria, a rural town in Argentina surrounded by soybean fields, Elizabeth Grossman wrote in National Geographic:

“Because so many pesticides are used in Argentina’s farm towns, the challenges of understanding what may be causing the health problems are considerable, says Nicolas Loyacono, a University of Buenos Aires environmental health scientist and physician. In these communities, Loyacono says, “we are breathing, eating, and drinking agrochemicals.”

In Iowa, which grows more genetically engineered corn than any other state in the U.S., water supplies have been polluted by chemical run off from corn and animal farms, reported Richard Manning in the February issue of Harper’s Magazine:

“Scientists from the state’s agricultural department and Iowa State University have penciled out and tested a program of such low-tech solutions. If 40% of the cropland claimed by corn were planted with other crops and permanent pasture, the whole litany of problems caused by industrial agriculture – certainly the nitrate pollution of drinking water – would begin to evaporate.”

These experiences in three areas leading the world in GMO crop production are obviously relevant to the question of whether Africa should embrace GMOs as the best solution for future food security. So why isn’t Bill Gates discussing these issues?

Propaganda watch

GMO proponents like to focus on possible future uses of genetic engineering technology, while downplaying, ignoring or denying the risks. They often try to marginalize critics who raise concerns as uninformed or anti-science; or, as Gates did, they suggest a false choice that countries must accept GMOs if they want “to let their people have enough to eat.”

This logic leaps over the fact that, after decades of development, most GMO crops are still engineered to withstand herbicides or produce insecticides (or both) while more complicated (and much hyped) traits, such as vitamin-enhancement, have failed to get off the ground.

“Like the hover boards of the Back to the Future franchise, golden rice is an old idea that looms just beyond the grasp of reality,” reported Tom Philpott in Mother Jones.

Meanwhile, the multinational agrichemical companies that also own a large portion of the seed business are profiting from both the herbicide-resistant seeds and the herbicides they are designed to resist, and many new GMO applications in the pipeline follow this same vein.

These corporations have also spent hundreds of million dollars on public relations efforts to promote industrial-scale, chemical-intensive, GMO agriculture as the answer to world hunger – using similar talking points that Gates put forth in his Wall Street Journal interview, and that Gates-funded groups also echo.

For a recent article in The Ecologist, I analyzed the messaging of the Cornell Alliance for Science, a pro-GMO communications program launched in 2014 with a $5.6 million grant from the Gates Foundation.

My analysis found that the group provides little information about possible risks or downsides of GMOs, and instead amplifies the agrichemical industry’s PR mantra that the science is settled on the safety and necessity of GMOs.

For example, the group’s FAQ states,

“You are more likely to be hit by an asteroid than be hurt by GE food – and that’s not an exaggeration.”

This contradicts the World Health Organization, which states, “it is not possible to make general statements on the safety of all GM foods.” Over 300 scientists, MDs and academics have said there is “no scientific consensus on GMO safety.”

The concerns scientists are raising about the glyphosate-based herbicides that go with GMOs are also obviously relevant to the safety discussion.

Yet rather than raising these issues as part of a robust science discussion, the Cornell Alliance for Science deploys fellows and associates to downplay concerns about pesticides in Hawaii and attack journalists who report on these concerns.

It’s difficult to understand how these sorts of shenanigans are helping to solve hunger in Africa.

Public science for sale

The Cornell Alliance for Science is the latest example of a larger troubling pattern of universities and academics serving corporate interests over science.

Recent scandals relating to this trend include Coca-Cola funded professors who downplayed the link between diet and obesity, a climate-skeptic professor who described his scientific papers as “deliverables” for corporate funders, and documents obtained by my group U.S. Right to Know that reveal professors working closely with Monsanto to promote GMOs without revealing their ties to Monsanto.

In an interview with the Chronicle of Higher Education, Marc Edwards, the Virginia Tech professor who helped expose the Flint water crisis, warned that public science is in grave danger.

“I am very concerned about the culture of academia in this country and the perverse incentives that are given to young faculty. The pressures to get funding are just extraordinary. We’re all on this hedonistic treadmill – pursuing funding, pursuing fame, pursuing h-index – and the idea of science as a public good is being lost … People don’t want to hear this. But we have to get this fixed, and fixed fast, or else we are going to lose this symbiotic relationship with the public. They will stop supporting us.”

As the world’s wealthiest foundation and as major funders of academic research, especially in the realm of agriculture, the Bill & Melinda Gates Foundation is in a position to support science in the public interest.

Gates Foundation strategies, however, often align with corporate interests. A 2014 analysis by the Barcelona-based research group Grain found that about 90% of the $3 billion the Bill & Melinda Gates Foundation spent to benefit hungry people in the world’s poorest countries went to wealthy nations, mostly for high-tech research.

A January 2016 report by the UK advocacy group Global Justice Now argues that Gates Foundation spending, especially on agricultural projects, is exacerbating inequality and entrenching corporate power globally.

“Perhaps what is most striking about the Bill & Melinda Gates Foundation is that despite its aggressive corporate strategy and extraordinary influence across governments, academics and the media, there is an absence of critical voices,” the group said.

But corporate voices are close at hand. The head of the Gates Foundation agricultural research and development team is Rob Horsch, who spent decades of his career at Monsanto.

 The case for an honest conversation

Rather than making the propaganda case for GMOs, Bill Gates and Gates-funded groups could play an important role in elevating the scientific integrity of the GMO debate, and ensuring that new food technologies truly benefit communities.

Technology isn’t inherently good or bad; it all depends on the context. As Gates put it, “as long as the right safety things are done.” But those safety things aren’t being done.

Protecting children from toxic pesticide exposures in Hawaii and Argentina and cleaning up water supplies in Iowa doesn’t have to prevent genetic engineering from moving forward. But those issues certainly highlight the need to take a precautionary approach with GMOs and pesticides.

That would require robust and independent assessments of health and environmental impacts, and protections for farmworkers and communities.

That would require transparency, including labeling GMO foods as well as open access to scientific data, public notification of pesticide spraying, and full disclosure of industry influence over academic and science organizations.

It would require having a more honest conversation about GMOs and pesticides so that all nations can use the full breadth of scientific knowledge as they consider whether or not to adopt agrichemical industry technologies for their food supply.

Stacy Malkan is co-founder and co-director of the consumer group U.S. Right to Know. Sign up for our newsletter here. Stacy is author of the book, ‘Not Just a Pretty Face: The Ugly Side of the Beauty Industry,’ (New Society Publishing, 2007) and co-founded the Campaign for Safe Cosmetics. Follow Stacy on Twitter: @stacymalkan.