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Even as Bayer moved to settle thousands of outstanding claims of dicamba damage to soybeans between 2015 and 2020, four nonprofit groups filed a new lawsuit against the Environmental Protection Agency Dec. 21 in the District Court of Arizona challenging the EPA’s Oct. 27 recertification and relabeling of herbicide products containing dicamba.

The plaintiffs—the Center for Food Safety, the National Family Farm Coalition, the Center for Biological Diversity and the Pesticide Action Network North America—are the same ones that have sued the agency several times since 2017 over dicamba, including in spring 2020 seeking to halt dicamba usage. In June, the Ninth Circuit Court of Appeals vacated the registrations of three products containing dicamba—Xtendimax with Vaporgrip Technology, Engenia and FeXapan—throwing farmers into uncertainty. The new suit again seeks to decertify herbicides containing dicamba and asked the judge to halt their sale.

"Less than six months ago, the Ninth Circuit resoundingly rejected Monsanto's and EPA's arguments about this pesticide, detailing its substantial drift harms," said George Kimbrell, legal director of Center for Food Safety and counsel in the case. "Rather than do what the law and science requires, the Trump administration has again unlawfully promoted pesticide corporations' profits over protecting the interests of farmers or the environment. So they are getting what they deserve this holiday season: coal in their stockings and a federal lawsuit.

In response to the Ninth Circuit’s order in June, the EPA allowed farmers to use up existing, already purchased stocks of the dicamba products, and the court eventually concurred. The EPA then gathered new information to re-register the dicamba-based products, along with Tavium, which it did on Oct. 27.

In the new lawsuit, the plaintiffs contend, “In its rush to re-approve this novel dicamba spraying again, EPA failed to follow the court’s order and more generally to comply with FIFRA’s mandates. Instead, it tried to paper over the problems the court found, and in the process created new ones.”

The plaintiffs claim the weather-related label restrictions added by EPA that are supposed to reduce drift in the new registrations are impossible to follow in real-world conditions and continue to under-estimate risks and damage to non-resistant soybean crops and a variety of neighboring crops and plants, including orchards. “Among other violations, EPA again failed to study and account for the substantial likelihood that even trained pesticide applicators, despite their best efforts, cannot both follow the use directions and control weeds.”

States’ rights

The Dec. 21 lawsuit also claims that the Oct. 27 re-registration snuck in a rule change that would strip states of some of their rights to regulate pesticides. The suit says that in a footnote, EPA removed states’ ability to act quickly to regulate pesticides in the absence of federal action, now requiring that they do so only after formal legislative action. The suit claims this as another violation of the Federal Insecticide, Fungicide and Rodenticide Act, the act under which the registrations were issued.

The use of dicamba-based herbicides increased dramatically after Monsanto, now Bayer, introduced strains of dicamba-resistant soybeans and cotton. So have claims of damage from dicamba drift. In February, a federal jury awarded Missouri peach orchard Bader Farms a dicamba drift verdict against Bayer and BASF that included $15 million in compensatory damages and $250 million in punitive damages.

In June, Bayer announced plans for a set of comprehensive agreements, which it hopes will settle most outstanding claims involving dicamba and glyphosate. On Dec. 31, Bayer moved ahead with announcements of a settlement fund up to $300 million for soybean farmers alleging damage from dicamba drift between 2015 and 2020.

David Murray can be reached at journal@hpj.com.

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