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