Plaintiffs in Dicamba Case Respond to Farmers' Frustration, Confusion

USFR-FJR Dicamba 06.13.20
As the fate of dicamba this year remains unknown, farmers are running out of time to spray dicamba products on soybeans. ( Lindsey Benne )

High winds and unfavorable weather conditions aren’t the only factors farmers are facing in 2020.  Worries about weather is now turning into growing worries about the liability of spraying dicamba products right now.

“This was a bombshell ruling (about) all of this pesticide that was out there ready to be sprayed,” says Kristine Tidgren, director of the Center for Agricultural Law at Iowa State. “Suddenly it was unregistered.”

Tidgren says the 9th Circuit Court ruling released this month immediately cast confusion on farms across the Midwest.

“There were mixed directives from different departments of agriculture just because all of the legal departments were just struggling to interpret the ruling, and people interpreted it different ways,” she notes.

In the 9th Circuit Court’s ruling, one of the judges wrote, “The EPA entirely failed to acknowledge the risk that OTT dicamba use would tear the social fabric of farming communities.” The justices went on to say, “We, therefore, vacate the EPA’s October 2018 registration decision.”

The ruling vacated the registrations of three dicamba products: Engenia, FeXapan and Xtendimax.

The court’s ruling is one the National Family Farm Coalition, a plaintiff in the case, says is needed.

“I think that it was a technology that was guaranteed to make money for the pesticide companies, maybe not so much for the farmers,” says Jim Goodman, board president of the National Family Farm Coalition, a plaintiff in the case. “I think the fact that the ruling came down again, it's going to impact some farmers, but that's not their fault. When they bought those technologies, they should have been assured that they were safe, that they'd work and that they'd be able to use them without harming themselves or their neighbors.”

After the initial court ruling came down, Iowa was one of 17 state departments of agriculture deciding as of Monday afternoon that farmers could still use dicamba, despite the court ruling.

“I thought it was important to send a message to our producers that until we had heard from EPA on what to do in terms of enforcement, that I wanted them to know that as long as they follow the label, that they could use the product,” says Mike Naig, Iowa Secretary of Agriculture.

EPA followed suit last week, issuing its own guidance for dicamba use this year.

“The ruling said that existing stocks can be used,” says Tidren. “Those products that farmers have in their possession that they were ready to use, the EPA order says you may go ahead and you may spray that.”

There’s even more confusion now, as that guidance also is in the courts. The plaintiffs filed a petition late last week, seeking an emergency motion to halt all dicamba use. The petition also wants to hold EPA in contempt of court.

It seems like—and this is just really the frustrating part—is that EPA seems to feel that they have more authority than state, local governments, even the court system,” says Goodman. “That's what really makes me angry, and I think it should make all farmers angry that EPA is working for the chemical companies, not for the farmers.”

The 9th Circuit Court of Appeals has placed a timeline of Tuesday, June 16, by EPA. That’s when EPA must inform the court why, despite the court’s ruling, EPA allowed continued, over-the-top use of dicamba on soybeans and cotton. The petitioners then have until this Thursday to file a reply.

BASF and Corteva both moved to intervene in the 9th Circuit, a move Bayer made a year ago. However, time is running out, to spray dicamba over-the-top of crops this year.  As of Monday morning, EPA’s guidance was still clear for not only farmers, but applicators as well.

“It also says that for commercial applicators, the existing stocks that they have, they can go ahead and they can use those stocks, as well,” says Tidgren.

EPA’s guidance makes clear manufacturers can no longer sell the product, but Naig is seeking more clarity on what that means for retailers. 

“We know that the registrants can no longer sell and distribute, but what about distributors and what about ag retailers,” asks Naig.

As confusion continues, the crisis over the future of dicamba is unknown. One veteran weed scientist says of all the crises he’s dealt with as a weed scientist, this one tops the list.  

“Primarily because it affects what's going on right now,” says Bob Hartzler, Extension weed scientist at Iowa State University. “Farmers are making decisions with what to treat their beans. And so they have to react instantly without really having time to make a sound strategy.”

The questions on timing come as farmers only have a limited number of days left to use dicamba on their farm.

“For some of the retailers and farmers this is kind of like pulling the rug out,” says Ken Ferrie, Farm Journal Field Agronomist and owner of Crop-Tech Consulting. “There is the need to make these decisions. Some of the product is already sprayed, of course.”

Hartzler thinks more than half of Iowa’s soybean acres utilize dicamba. In the South, the majority of cotton acres are dicamba tolerant. But some farmers are starting to shy away from dicamba as the legal issues ramp up. Ferrie says if a farmer is doing away with dicamba, there are other options.

“There's a family, a chemistry you can use, but it's totally different, and usually the grower has a high rate of residual on when he uses this product to help him out,” says Ferrie. “If he wasn't planning on using this product, he's probably up against it already, meaning that he doesn't have enough residual by itself and it needs to happen pretty quick.”

Syngenta has a dicamba product that can also be used. It was registered after the court filing.

Hartzler fears if producers switch their chemistry plan last minute, the change could also come with the risk of higher herbicide resistance.

“Some fields are going to work fine, other fields where resistance is more widespread, there’s likely to be escapes,” says Hartzler.

As farmers figure out what to do today, there’s also a fear of what it means for dicamba and other herbicide use next year.

“This underscores the importance of having a predictable, science -based, transparent regulatory process for the use of the pesticide products,” says Naig. “That’s not just about dicamba. That's about any crop-protection tool that farmers might use.”

As dicamba products entangled in lawsuits wait to see the fate for this year, some fear it could be weight for products with licenses that expire at the end of this year.

“I think in future registrations, there will likely be a little more careful analysis and documentation of why evidence of harm is not stopping the registration,” says Tidgren.

The fate of dicamba is still unknown, as companies such as Bayer, BASF and Corteva decide their next move.

“Dicamba, we've learned, is just a touchy molecule, and to totally eliminate volatility, which we need to do, is proving to be very difficult,” says Hartzler.

The plaintiffs say they are also worried about the future, and hope any future formulations or chemistries, are more carefully vetted.

“I would hope that chemical companies will get the message and say, ‘Gee, maybe next time before we start rolling out these things that are in the pipeline, you better make sure that it works as intended, and the farmers that don't want to use it, don't have to use it, and  that the farmers who do use it are protected and safe,’” says Goodman. “They've got a lot of money invested in R&D. Maybe they need to invest more and make sure that the things that they sell work as intended.”

Hartzler also knows even newer formulations of dicamba could face scrutiny

“It wouldn't surprise me if it is for over-the-top use and soybeans and cotton are no longer allowed, since we’ve had widespread problems the first three years,” he says. “It was teetering anyway, and this might be the straw that broke the camel's back.”

A weedy future for a chemistry that’s caused debate from the beginning…and the debate and dilemma over dicamba continue to heat up.

Related Stories:

Will Farmers Be Able to Spray Dicamba Next Week? 

EPA says Existing Dicamba Stocks Can Be Used 

BREAKING: Court Removes Three Out of Four Dicamba Registrations