Bloomberg Law
Oct. 27, 2020, 7:45 PMUpdated: Oct. 27, 2020, 10:56 PM

EPA OKs Soybean, Cotton Farmers’ Use of Dicamba Weedkiller (2)

Pat Rizzuto
Pat Rizzuto
Justina Vasquez
Justina Vasquez
Bloomberg News

Farmers can continue to use dicamba for five years, EPA Administrator Andrew Wheeler said Tuesday, offering certainty to cotton and soybean growers who are the most frequent users of the weedkiller make by Bayer AG, BASF SE, and Syngenta AG.

The Environmental Protection Agency approved new registrations for two dicamba products—Bayer’s XtendiMax with VaporGrip Technology and BASF’s Engenia Herbicide—and extended the registration for an additional product, Syngenta’s Tavium Plus VaporGrip Technology.

These registrations are only for use on dicamba-tolerant cotton and soybeans and will expire in 2025.

The Environmental Protection Agency’s decision, however, is likely to frustrate some farmers growing vegetables, fruit, and other crops—including soybeans that aren’t genetically modified to tolerate the herbicide. The Center for Food Safety said it plans to challenge the EPA’s re-registration.

Farmers have filed lawsuits seeking compensation for the damage they say dicamba has caused when it drifts from sprayed fields onto their property. Bayer already agreed to pay $400 million to settle such damage claims.

Cutoff Date

To protect other farmers from dicamba drift, the EPA will require a cutoff date after which soybean farmers and cotton farmers could no longer use dicamba-based weedkillers, increasing the buffer zone they must use, and adding a buffering chemical that will reduce the weedkiller’s potential to spread, Wheeler said.

States that want further restrictions must work through the pesticide law’s provisions, he said, adding that the EPA relied on extensive outside research for its decision, and was trying to have a national approach to the herbicide.

The additional protections should satisfy courts, Wheeler said.

The Center for Food Safety joined the National Family Farm Coalition and environmental health groups in a previous lawsuit that alleged the EPA failed to consider dicamba’s full range of damage to the environment and endangered species.

The U.S. Court of Appeals for the Ninth Circuit, which heard the previous challenge, said in June the weedkiller should be banned. That same month, the EPA announced, however, that farmers could continue using existing stocks through July 31, the part of the growing season when dicamba is used.

The EPA’s new restrictions will kick in during next year’s growing season, Wheeler said.

Millions of Acres

Dicamba is used on millions of acres annually. Farmers will harvest 82.3 million acres of soybeans for the 2020-2021 crop year, according to Department of Agriculture estimates. USDA data show 94% of soybeans planted in the U.S. in 2020 are genetically modified specifically to tolerate herbicides.

The American Farm Bureau Federation and other industry groups advocated for continued dicamba use, arguing that most crop farmers are already familiar with it, and switching to other products could jeopardize yields. The farm bureau, the American Soybean Association, and the the National Cotton Council generally praised the move.

“The economic damage that would result from not being able to use dicamba herbicides would be tremendous,” Kent Fountain, Council chairman and a Georgia cotton producer, said in a statement.

Use of three dicamba herbicides this year prevented a direct loss of at least $400 million in U.S. cotton production, according to the council.

Legal Challenges Planned

But George Kimbrell, legal director at Center for Food Safety, said the group “will most certainly challenge these unlawful approvals.”

“Rather than evaluating and addressing the significant costs of dicamba drift as the Ninth Circuit told them the law required, EPA has rushed re-approval as a political prop just before the election, sentencing farmers and the environment to another five years of unacceptable damage,” Kimbrell said.

Paul Lesko, counsel in Peiffer Wolf Carr Kane & Conway’s St. Louis office, said EPA’s decision is bad news for winemakers, nurseries, and other farms that grow crops with no defense against dicamba. Lesko, who said his law firm has defended dozens of farmers, said reactions to the weedkiller range from having a crops’ leaves curl to stunted growth, and, if hit hard enough, to plant death.

``Despite the EPA’s approval, some farmers may switch herbicides, Seth Goldstein, a senior equity analyst for the investment firm Morningstar, told Bloomberg Law.

Those farmers may not want to deal with the uncertainty of having a window to spray dicamba if the EPA were to lose in court again, he said.

(Updated with reactions from the National Cotton Council, American Soybean Association, and Morningstar.)

To contact the reporter on this story: Pat Rizzuto in Washington at (Bloomberg Law); Justina Vasquez in New York at (Bloomberg)

To contact the editors responsible for this story: Rebecca Baker at; Chuck McCutcheon at (Bloomberg Law)