An Insiders Update on the Dicamba Drift Trials

Steve Smith, Save Our Crops Coalition Chairman

One down…dozens more to go as the trials associated with dicamba are just beginning.

For those of you who have been watching and reading the news about the Missouri Peach case (here is a good piece by the Midwest Center for Investigative Reporting if you need a refresher), you know that the guilty verdict has reverberated around the dicamba world. 

Bader Farms in Southeastern Missouri is the largest peach orchard in the state. Owner/operator Bill Bader began to witness damage to his trees in the summer of 2015, which drastically worsened in 2016, the very time that dicamba tolerant cotton and dicamba tolerant soybeans were released for sale. 

The usage of dicamba in that area exploded in 2016, for lack of a better term, even though there was no legal product approved for use on those crops. Monsanto had received registration to sell their seed, the genetics were approved by the USDA, but the EPA had yet to approve any dicamba product for in-crop use.  With a wink/wink and a nod/nod, pink stickers were placed on the seed bags to remind everyone that there was no approval to spray any dicamba product during the season. 

It wouldn’t take much of an imagination to guess what happened with those warnings when glyphosate tolerant weeds were really hitting those fields (which by the way was a result of the Monsanto theory of using only glyphosate year after year, thereby selecting for resistant weed types). According to sales figures, the use of existing dicamba formulations increased dramatically as an indication that crops were being sprayed off-label and thus illegally.  (Note- see the extensive coverage of the Dicamba Drift crisis on Hygeia Analytics for more on how this all unfolded).

So much of that was happening, that the phenomenon known as “atmospheric loading” (more on that here) came to pass as highly treated areas had so much dicamba volatilizing from the fields that large areas were injured, and in this case, it included the peach orchard of Bill and Denise Bader.  Thousands of trees were affected and their lifelong dream of a profitable peach operation was in jeopardy.  As the acreage of dicamba tolerant crops increased and the use of in-crop applications were approved and applied, their trees continued to take in sub lethal doses of dicamba and their problems grew worse until viability of their farm was at risk. 

In 2016, the Baders filed a lawsuit as the only hope of saving their farm.  It was impossible to know from which fields the product originated so their only recourse was to claim that Monsanto (now owned by Bayer), originator and registrant of the tolerant seed and then the dicamba manufacturer from 2017 and on, and BASF, the dicamba manufacturer in 2015 and 2016, were responsible for collectively designing and implementing a system that had harmed their trees.  The wheels of justice move quite slowly but were finally put into motion on January 27, 2020 with the start of the trial that they hoped would give them another chance to realize their passions for being quality peach growers.

I had the distinct honor of participating in the trial as the lead-off witness. My job was to begin to lay the foundation of facts regarding the foreseeability of the problems that would follow if the course of dicamba tolerant crops continued and resulted in the widespread usage of dicamba. 

For those of you who have followed this journey through the years, you have witnessed the involvement of the Save Our Crops Coalition in this journey to protect sensitive crops.  The problems that were to come were not a surprise (we warned the EPA of them in 2013, and again in 2016), not to all of you who joined forces to help in the process, nor were they a surprise to Monsanto. 

In 2009, I was named as a member of the Monsanto Dicamba Advisory Council, a group of diverse stakeholders selected to advise Monsanto on the pitfalls or opportunities in releasing such a technology and to advise on how to make the system be successful.  As one of the few participants with specialty crops as a focus, it didn’t take long for me to determine that the pathway being embarked upon was flawed, but I was faithful in the mission of trying to warn, at every opportunity, about those flaws. 

In addition to the dialogue in the official meetings, I was privileged to present Congressional testimony in 2010 outlining the dangers I saw on the pathway ahead if dicamba usage became widespread.  It seems reasonable to recognize the historical accuracy of these two quotes as they are just as true today, ten years later, as they were at the time:

“I am convinced that in all of my years serving the agricultural industry, the widespread use of dicamba herbicide possesses the single most serious threat to the future of the specialty crop industry in the Midwest.”

“The widespread use of dicamba is incompatible with Midwestern agriculture. “

During the trial, I was asked to describe my time on the Dicamba Advisory Council and about my dismissal from that group.  My testimony made it clear that Monsanto was keenly aware of the dangers their new system would be placing upon sensitive plants.  Upon the founding of the Save Our Crops Coalition announced in 2012 and my subsequent removal from the advisory council, continued dialogue occurred where again I faithfully warned them about the problems that were bound to occur. In addition to the dialogue, the Save Our Crops Coalition filed several petitions with the EPA.

One of these petitions urged the EPA to establish an Environmental Impact statement, which was granted and effectively blocked the registration of dicamba products for in-crop use until the crop year of 2017.  All this evidence was important for laying the proper groundwork for the remaining part of the trial, which would last three weeks. My testimony helped establish the fact that Monsanto had been effectively warned of the upcoming problems with dicamba.

The evidence and further testimony of the trial was evidently so clear and convincing, that the jury resisted the defendant’s arguments that the damage sustained to the Bader’s peaches were from other sources and awarded actual damages of $15 million. The following morning, the jury then assessed punitive damages in the amount of $250 million.

One can ascribe many messages as to what this type of award was telling the defendants, but those probably don’t match the statement Bayer/Monsanto made following the verdict: “According to the U.S. Environmental Protection Agency, these tools do not pose any unreasonable risk when used according to their EPA-approved label.”  Hubris is alive and well in St. Louis.

So where does that leave us as we begin the 2020 cropping season?  Unfortunately, we’re in the same vulnerable position.  Dicamba tolerant crops will comprise the vast majority of all soybean acres in 2020 and dicamba will see increasing usage in corn since more and more acres of tolerant beans are safe from the effects of dicamba.  Several states have instituted some additional restrictions on application dates and temperature limitations. 

These will help but are only a small bandage for a gaping wound.  It is critical that all who remain concerned about the damages to sensitive plants remain engaged in working with your state regulatory agencies and in observing evidence of damage and continuing to report those instances.  If the regulatory agencies do not get reports, they will not continue to recognize the severity of the problems that the widespread use of dicamba places on all sensitive plants, including trees, rural landscapes, and pollinator habitats.

The USDA sanctions an advisory board for the Fruit and Vegetable industry.  As a member and chairperson of the Production Subcommittee, and with the cooperative input from others on the board, strong language was included in the recommendations about dicamba.  These recommendations were just released today, February 21, 2020.  You can find those recommendations at this link by scrolling down to the section by the Production Subcommittee, which starts at the bottom of page 3.

I am confident you will find them helpful as we continue to work towards the safety of all sensitive plants and crops.

The Save Our Crops website is still available with historic resources:  We invite you to continue your participation in the theaters that are most available to you.  We will continue to personally dialogue with the EPA and USDA in regards to the regulatory process that is once again up for renewal in 2020.  Maybe all the deniers of dicamba problems will finally recognize that the “emperor is wearing no clothes” when it comes to the problems of widespread use of dicamba so that effective changes can be made to protect sensitive plants.

Thank you for all your past and continued support.

Steve Smith

Chairman, Save Our Crops Coalition