(UPDATES with comment from BASF)
The Environmental Protection Agency on Monday declared it would not immediately honor a court ruling handed down last week that banned certain herbicides made by three of the world’s largest chemical companies.
The move by the EPA amounts to a generous gift to BASF, Bayer and Corteva Agrisciences whose dicamba herbicides were deemed by the court to have been approved by the EPA illegally. The court specifically said in its order issued last week that it wanted no delay in vacating those approvals. The court cited damage done by dicamba use in past summers to millions of acres of crops, orchards and vegetable plots across U.S. farm country.
But the EPA announced Monday that it was issuing a “cancellation order” that would give farmers until July 31 to use existing stocks of Bayer’s Xtendimax, BASF’s Engenia, and Corteva’s FeXapan.
The ruling by the U.S. Court of Appeals for the Ninth Circuit found that the EPA made multiple errors in approving the dicamba products and came in response to a petition brought by the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America.
The Center for Food Safety (CFS), whose lawyers argued the case for petitioners, said in a statement that the EPA’s action was “disingenuous” and “ignores the well-documented and overwhelming evidence of substantial drift harm to farmers from another disastrous spraying season.” The EPA action also ignores the risks dicamba poses to hundreds of endangered species, CFS said.
“The Trump administration is again showing it has no regard for the rule of law. All users that continue to not seek alternatives should be on notice that they are using a harmful, defective, and unlawful product. We will bring the EPA’s failure to abide by the Court’s order to the Court as expeditiously as possible,” CFS said.
U.S. Secretary of Agriculture Sonny Perdue last week urged the EPA to figure out a way around the court ruling, echoing comments by Bayer, BASF and Corteva that called dicamba herbicides important “tools” for farmers growing genetically engineered soybean and cotton.
The EPA said in deciding to allow farmers to continue to use dicamba through the end of July it was responding to “numerous unsolicited phone calls and emails” telling the agency “there is a real concern and potential for devastation to cotton and soybean crops that could result in a crisis for the industry.”
The EPA did not acknowledge the scores of farmers growing crops other than dicamba-tolerant soybeans and cotton who have suffered crop losses from dicamba drift and fear another summer of crop damage.
Farmers have been using dicamba herbicides for more than 50 years but traditionally avoided applying the herbicide during hot summer months, and rarely if ever over large swaths of land due to the well-known propensity of the chemical to drift far from intended target areas where it could damage crops, gardens, orchards, and shrubs.
Monsanto, which was bought by Bayer in 2018, upended that restraint when it launched dicamba-tolerant soybean and cotton seeds a few years ago, encouraging farmers to spray new formulations of dicamba “over the top” of these genetically engineered crops during warm-weather growing months.
Monsanto’s move to create the dicamba-tolerant crops came after its glyphosate-tolerant crops and widespread spraying of glyphosate created an epidemic of weed resistance across U.S. farmland.
Farmers, agricultural scientists and other experts warned Monsanto and the EPA that introducing a dicamba-tolerant system would not only create more herbicide resistance but would lead to devastating damage to crops that are not genetically engineered to tolerate dicamba.
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 were proven false amid widespread complaints of dicamba drift damage in recent years. More than one million acres of dicamba crop damage was reported last year in 18 states, the court noted.
In February, a unanimous jury awarded a Missouri peach farmer $15 million in compensatory damages and $250 million in punitive damages to be paid by Bayer and BASF for dicamba damage to his property.
In a statement issued after the EPA announcement, BASF said it supported the EPA’s decision to allow the continued use of existing stocks of BASF’s Engenia herbicide through July 31, but said “additional clarity and flexibility” was required. The company said it had immediately suspended selling and shipping Engenia herbicide after last week’s ruling.
The company said it will continue to pursue re-registration of Engenia with the EPA and is assessing its options to pursue legal remedies to challenge the court order.