A federal appeals court in San Francisco on Wednesday overturned the U.S. Environmental Protection Agency's approval of the use of dicamba, a weed killer used on millions of acres of soybean and cotton crops.
A three-judge panel of the 9th U.S. Circuit Court of Appeals said the EPA failed to comply with a federal pesticide law requiring it to consider the risks of the chemical when it granted a two-year conditional approval in late 2018.
Dicamba has been in use for more than 50 years, but its use expanded greatly in the past several years after Monsanto reformulated it and developed dicamba-resistant soybean and cotton seeds so that dicamba could replace Monsanto's Roundup herbicides on those two crops. The reason was that some weeds had developed resistance to glyphosate, the main ingredient in the Roundup products.The risk posed by dicamba is that it can drift for as far as a mile in wind conditions or when it vaporizes in hot weather, and thereby damage other crops, trees and gardens, according to the court.
The EPA's approval was challenged in a lawsuit filed in the appeals court by the Center for Food Safety, Center for Biological Diversity, National Family Farm Coalition and Pesticide Action Network.
The court said in evaluating the chemical, the EPA understated the number of acres on which it was used and amount of damage it caused in 2018.
It also failed to consider that complex restrictions in directions issued by the agency were unlikely to be followed and failed to look at the "social cost to farming communities where use of dicamba herbicides had turned farmer against farmer, and neighbor against neighbor," the panel said.
"We hold that the EPA substantially understated risks that it acknowledged and failed entirely to acknowledge other risks," Circuit Judge William Fletcher wrote for the court.
Unless Monsanto, which is now owned by Bayer AG of Germany, or the EPA obtain a stay or successfully appeal the decision, the ruling means that dicamba can't be used for the rest of the year, according to Lori Ann Burd, environmental health program director for the Center for Biological Diversity.
Burd said, "This is a massive victory that will protect people and wildlife from uses of a highly toxic pesticide that never should have been approved by the EPA.
"The fact that the Trump EPA approved these uses of dicamba despite its well-documented record of damaging millions of acres of farmland, tree groves and gardens highlights how tightly the pesticide industry controls EPA's pesticide-approval process," she alleged.
Bayer spokesman Christopher Loder said, "We strongly disagree with the ruling and are assessing our options. If the ruling stands, we will work quickly to minimize any impact on our customers this season.
"Our top priority is making sure our customers have the support they need to have a successful season," Loder said.
He said the EPA's approval had reaffirmed that "this tool is vital for growers and does not pose any unreasonable risks of off-target movement when used according to label directions."
Loder noted that ruling pertains to the 2018 approval, which expires in December, and said Monsanto is now engaged in a new registration process to have its dicamba herbicide, XtendiMax, approved for the 2021 season and beyond.
The EPA said in a statement, "EPA is currently reviewing the court decision and will move promptly to address the court's directive."
Dicamba herbicides are also made by Corteva Agriscience of Wilmington, Del., and BASF of Germany, in addition to Monsanto.
The Center for Food Safety said in a statement that more than 25 million pounds of the now-disapproved dicamba had been set to be sprayed on American farms this summer.
"Today's decision is a massive win for farmers and the environment," said George Kimbrell, the center' lead counsel in the case.
"It is good to be reminded that corporations like Monsanto and the Trump Administration cannot escape the rule of law, particularly at a time of crisis like this," Kimbrell said.