EPA, farmers and Bayer are fighting in an Arizona federal court to keep the controversial herbicide dicamba on the market for over-the-top use.
The agency, producer groups and the registrant for Xtendimax have all filed briefs in support of EPA’s approvals of Xtendimax, BASF’s Engenia and Syngenta’s Tavium — specifically, its decision in 2020 and label amendments in 2022 and 2023.
The Center for Food Safety and Center for Biological Diversity both contend EPA inadequately considered the herbicide's risks to endangered plants and animals through off-target drift. The groups also said in an April 12 motion for summary judgment that EPA had rushed to approve the herbicide in late October 2020, about a week before the presidential election between Donald Trump and Joe Biden.
There appears to be no chance farmers will lose dicamba this growing season, as the court has set a briefing schedule that extends into next month. The plaintiffs have another brief scheduled for June 29, and EPA and Bayer, which has intervened on the side of the agency, will respond July 20.
In 2020, a 9th U.S. Circuit Court of Appeals decision had soybean and cotton growers scrambling to figure out whether they could continue using dicamba. The court vacated the registrations of three dicamba products on June 4, 2020, but subsequently declined to halt their use.
“The product is currently used on over 50 million acres of soybeans and cotton across the United States,” said Kyle Kunkler, director of government affairs for the American Soybean Association.
“There are certainly not enough alternatives or chemistries out there to replace what would be lost,” he said, adding a familiar argument — that without dicamba and other herbicides, farmers would have difficulty continuing to employ low-tillage or no-till practices.
Kyle Kunkler, ASA
“There aren't enough glyphosate-tolerant seeds out there right now, nowhere near enough,” he added. It would take “at least a couple growing seasons,” he said, to produce enough to replace the dicamba-tolerant seeds, were they no longer approved.
In its brief, ASA — joined by about three dozen state soybean and cotton associations — argued the plaintiffs should go through the formal cancellation procedure under the Federal Insecticide, Fungicide, and Rodenticide Act since they rely on “post-decisional” information to make their case of dicamba’s environmental harms.
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Bayer and EPA make the same argument, with EPA saying in its brief that the plaintiffs “improperly rely on extra-record documents post-dating the 2020 registrations that were not, and could not have been, considered by the agency.”
ASA and Plains Cotton Growers have filed challenges to the dicamba registrations on the grounds that they are overly restrictive. The D.C. Circuit Court of Appeals has yet to rule on whether that challenge belongs in the district court or the appellate court. The case was argued in December.
EPA defended its decision-making process, saying it properly concluded there was “no effect” on endangered species except the Eskimo curlew, which hasn’t been seen in more than 50 years.
And Bayer and EPA both argued that EPA had limited the potential for off-target damage by establishing cutoff dates for dicamba applications in specific states where there had been high numbers of complaints: June 12 in Iowa, Illinois, and Indiana and June 20 in South Dakota. The cutoff in southern Minnesota is June 12; north of Interstate 94 it’s June 30.
Temperature restrictions remain. Dicamba cannot be applied when the heat tops 85 degrees Fahrenheit.
In Minnesota, at least, the June 12 cutoff appears to have helped, says Joshua Stamper, director of the Minnesota Department of Agriculture’s Pesticide & Fertilizer Management Division.
“What the deadline really did was incentivize the growers to use dicamba as an early [pre-emergent] herbicide” in conjunction with other pre-emergent herbicides, he said. “When it's used in that manner, growers see a lot of success. And if they're diligent in layering their residual herbicides late in the season, they can have a lot of success incorporating dicamba.”
Stamper said he hasn’t heard any calls to extend the June 12 date. So far, the department has received two complaints of dicamba damage.
University of Illinois weed scientist Aaron Hager, who has been critical of the way registrants, especially Bayer, have characterized the causes of off-target damage, agrees that pre-emergent application is a potential solution for that problem.
“Take all of the approved formulations of dicamba and, only sell it premixed with something else," says Hager, a professor of weed science. "And that something else is another herbicide that has to be applied before the soybeans come out of the ground. So in other words, now, you can use dicamba, but you're going to use it pre-emergence, which typically occurs earlier in the season … which means your likelihood of applying it during cooler temperatures is much greater.”
Aaron Hager, University of Illinois
He said pre-mixing with metribuzin, sulfentrazone or flumioxazin would work; those herbicides cannot be sprayed post-emergent on soybeans “because they will severely injure or kill” the soybean.
Benefits include the continued use of dicamba, Hager said, and Bayer "can still sell the traits while reducing a lot of the off-target movement, simply because now applications occur in a cooler period of time.”
He said it’s still too early to know for sure whether dicamba applications have caused significant off-target damage in Illinois this season.
“It may be up to three weeks until you see your symptomology on an affected field,” he told Agri-Pulse Monday Monday. “From what I've seen so far this year, it's probably less than what I've seen in previous years. But I'll have a better answer for you three weeks from now.”
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