9th Circuit Kicks Dicamba Weed Killer Off the Market

Three kinds of Dicamba weed killer, embroiled in litigation for drifting to neighboring farms and killing crops, have been kicked off the market. The 9th US Circuit Court of Appeal revoked the Environmental Protection Agency’s (EPA) approval of the herbicides made by Bayer AG and its German rival BASF.

“American farmers have been using Dicamba, a chemical herbicide, to combat weeds for more than 50 years. Dicamba is an effective weed killer, but its toxicity is not limited to weeds. It can kill many desirable broadleaf plants, bushes, and trees. It also has a well-known drawback. Dicamba is volatile, moving easily off a field onto which it has been sprayed,” the court said.

The ruling cost Bayer $34 million in lost earnings.

BASF has filed an emergency motion to intervene in the decision blocking the sale of three Dicamba-based herbicides, including BASF’s Engenia herbicide. The June 3 ruling also bans herbicides XtendiMax and FeXapan.

BASF said, “The Ninth Circuit’s decision has caused immediate chaos among the agricultural community and threatens the livelihood of countless US farmers.” Ironically, US farmers are the plaintiffs against BASF.

Bayer settles

Instead, Bayer announced a mass tort settlement of the dicamba drift litigation on June 24, 2020. Bayer will pay up to $400 million to resolve the litigation in MDL 2820 pending before US District Judge Stephen N. Limbaugh, Jr., in the US District Court for the Eastern District of Missouri and claims for the 2015-2020 crop years.

Bayer said it expects a contribution from its co-defendant, BASF, towards this settlement.

Bayer did not include the Bader Farms verdict in its settlement. In the first bellwether trial, the jury awarded $15 million in compensatory damages on February 14, 2020, to Missouri peach farmer, Bill Bader and his family-owned Bader Farms. The following day, they added another $250 million in punitive damages against Bayer and BASF.

A three-judge panel of the 9th Circuit ruled that the US Environmental Protection Agency (EPA) substantially understated the risks related to the use of Dicamba, a chemical in herbicides used on genetically engineered soybeans and cotton. The herbicides are known to drift away and damage other crops that are not resistant.

Environmental groups – including the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity and Pesticide Action Network North America — have long sought cancellation of the EPA’s approval of Bayer’s Dicamba herbicide and BASF’s Engenia and Corteva.

EPA follow-up action

The EPA issued a cancellation order that says growers and commercial applicators may use existing stocks of Dicamba that were in their possession on June 3, 2020, the effective date of the 9th Circuit decision. This use may not continue after July 31, 2020.

EPA Administrator Andrew Wheeler said, “the cancellation and existing stocks order is consistent with EPA’s standard practice following registration invalidation and is designed to advance compliance, ensure regulatory certainty, and to prevent the misuse of existing stocks.”

The 9th Circuit ruling concerned the agency’s 2018 registration decision to approve Dicamba. Bayer had been seeking a new EPA registration for the herbicide for 2021 and beyond.

Arkansas farmer Reed Storey told Reuters he was encouraged by the ruling after his soybeans suffered damage from Dicamba sprayed on neighboring fields from 2016 to 2018.

“It’s a move in the right direction in getting the in-crop use of it stopped,” he said.

Some farmers and seed dealers said the ruling could drive a shift away from Bayer’s dicamba-resistant Xtend soybean seeds to Enlist E3 soybeans sold by Corteva.

Xtend soybeans account for more than half of US soy plantings. Farmers turned to the product to protect themselves from Dicamba sprayed by neighbors and after some weeds developed resistance to glyphosate.

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