Could the end really be in sight? Yesterday, June 3rd, the Ninth District Court vacated the 2018 Dicamba registration. I’ve attached the full ruling, but here is an excerpt:
The EPA substantially understated three risks that it acknowledged. The EPA substantially understated the amount of DT seed acreage that had been planted in 2018, and, correspondingly, the amount of dicamba herbicide that had been sprayed on post-emergent crops. Further, the EPA purported to be agnostic as to whether formal complaints of dicamba damage under-reported or over reported the actual damage, when record evidence clearly showed that dicamba damage was substantially under-reported. Finally, the EPA refused to estimate the amount of dicamba damage, characterizing such damage as “potential” and “alleged,” when record evidence showed that dicamba had caused substantial and undisputed damage.
The EPA also entirely failed to acknowledge three other risks. The EPA entirely failed to acknowledge record evidence showing the high likelihood that restrictions on OTT [over the top] dicamba application imposed by the 2018 label would not be followed. The EPA based its registration decision on the premise that the label’s mitigation measures would limit off-field movement of OTT dicamba. These measures became increasingly restrictive with each iteration of OTT dicamba labels. Record evidence shows that the restrictions on the 2016 and 2017 labels had already been difficult if not impossible to follow for even conscientious users; the restrictions on the 2018 label are even more onerous. Further, the EPA entirely failed to acknowledge the substantial risk that the registrations would have anticompetitive economic effects in the soybean and cotton industries. Finally, the EPA entirely failed to acknowledge the risk that OTT dicamba use would tear the social fabric of farming communities.
We therefore vacate the EPA’s October 31, 2018, registration decision and the three registrations premised on that decision. [See the full ruling here]
The ramifications of this ruling will be widely felt in the soybean and cotton growing regions where I’m sure farmers have invested hundreds of thousands of dollars per farm on the higher priced seed and the chemical purchases and anger will be rampant. But the focus of the anger needs to be put where it belongs…at the feet of the arrogance displayed by Monsanto in developing and releasing a technology that was known to be dangerous to susceptible plants and would move freely from the targeted spray points. Documents are clear (as revealed in the Bader peach case in Missouri) that they KNEW the dangers and risks and yet progressed with the decision to release and promote the dicamba system. I am not a big fan of judicial activism, but the courts are there for a reason and this was a proper utilization. Agriculture is better today than it was yesterday.
As I have expressed many times over in the past decade, one of the unintentional consequences of this entire event was the “black-eye of agriculture”. When we cannot regulate ourselves to limit our farming systems to not damage non-target plants such as rural homeowner landscapes and natural wooded areas, we can expect others to do it for us and we have no one to blame for our situation than ourselves. The long reach of this ruling cannot be accurately predicted and will eventually go far beyond just the registration of dicamba.
On September 30, 2010 I gave this testimony before a Congressional Oversight Committee. “Increased dicamba usage, made possible through the introduction of dicamba tolerant soybeans, is poor public policy and should not be allowed”.
Ten years later, the court has agreed and we are all the better for the ruling. Thanks for all your past support. No doubt there will be appeals and continued battles, but at least the initial skirmish is over.
Chairman, Save Our Crops Coalition