EPA says dicamba will be sprayed this summer despite court ban

Despite a recent federal court ruling banning three agricultural weed killing products, U.S. regulators said this week that they will continue to allow farmers to spray the pesticides this summer.

In what amounts to a win for the agrochemical industry and for many farmers using the industry’s seeds and chemicals, the Environmental Protection Agency (EPA) issued an order on Wednesday laying out a framework for continued use of millions of gallons of dicamba herbicides. The EPA said farmers may still apply product that has already been shipped from agrochemical companies Bayer, BASF and Syngenta. The companies cannot sell additional supplies over what has already been labeled and shipped, however, the EPA said.

The announcement is the latest move in a years-long saga that has played out across US farm country, pitting farmer against farmer. While many growers say the dicamba products – sprayed over special dicamba-tolerant crops – are necessary to fight back increasingly difficult-to-kill weeds in their fields, many others say their own orchards, gardens and farm fields not planted with dicamba-tolerant crops are being damaged by the drift of the pesticide across the countryside.

Last week, a federal judge in Arizona banned the dicamba-based weed killers made by the three companies, saying the EPA unlawfully approved the products. It marked the second time a federal court has banned dicamba weed killers since they were introduced for the 2017 growing season. The judge in the most recent case found that the EPA made a crucial error by failing to allow a public notice and comment period on its reapproval decision for dicamba as required by law.  

The EPA’s action to allow farmers to still spray this year angered many environmental advocates. 

“It’s as though they didn’t just lose this lawsuit,” said Lori Ann Burd, environmental health program director at the Center for Biological Diversity, which successfully challenged the 2020 approval of dicamba in court. “It’s hard to imagine what it would take to get rid of dicamba. It’s like a zombie, it just keeps coming back and coming back. There has never been a point where the EPA didn’t bend over backwards to give registrants what they want,” Burd said.

Industry applause

The EPA order issued this week said that retailers who have already purchased the dicamba weed killing products in question can continue to sell them to farmers until May 31. Farmers can continue to spray the weed killers on soybeans until June 30 and cotton until July 30. Some states – Illinois, Iowa, Indiana, Minnesota and South Dakota – have earlier deadlines for both final sale and spraying cutoff dates. 

While the use of the dicamba-based weedkillers, sprayed over dicamba-tolerant crops, has been welcomed by many farmers, widespread use has devastated the livelihoods of other farmers.

Since 2017, dicamba has been the subject of thousands of complaints by farmers and has been responsible for millions of acres of damage to crops, endangered species and natural areas. The weed killers were previously banned for a few months in 2020 before the Trump administration reapproved dicamba. 

Still, the companies selling the dicamba herbicides and grower groups such as the American Seed Trade Association, the American Soybean Association, and the Southern Cotton Growers, said this week that they welcomed the EPA’s action to keep dicamba available to farmers this year.  

Bayer, the owner of Monsanto and the maker of dicamba-based XtendiMax said it welcomed the EPA’s “swift action.”  

The trade groups had asked the EPA to continue the use of dicamba, arguing that most farmers have already purchased their seed supplies for the upcoming growing season, and without dicamba, farmers who have purchased the genetically modified seeds that are resistant to dicamba would have few weed control options. Farmers are increasingly battling so-called “super weeds” that have become resistant to other herbicides, particularly glyphosate, the key ingredient in Roundup.

“The court’s decision on dicamba instantly left tens of millions of acres of US farmland in limbo—and in limbo a matter of weeks before spring planting,” Josh Gackle, president of the American Soybean Association and a soybean farmer from North Dakota said in a statement. 

“This ruling potentially affects more than 50 million acres of dicamba-tolerant soybeans and cotton—an area larger than the state of Nebraska—so again, we are very appreciative of EPA’s decision to let us get through the 2024 growing season by using any product already in the delivery pipeline,” Gackle said.

Skyrocketing use 

Overall, herbicide use has skyrocketed in recent decades, after Monsanto released its RoundupReady crops in the mid-1990s. Those crops, which were genetically modified to withstand being sprayed by the once-highly effective glyphosate, quickly became ubiquitous. However, after decades of farmers spraying glyphosate, many weeds began to develop resistance to the weed killer. 

In response, companies developed genetically modified crops designed to tolerate dicamba.and another weed killer called 2,4-D.

Monsanto’s dicamba-tolerant “Xtend” crops quickly came to dominate the market, and were planted on 65 million acres in 2021, according to EPA estimates. Many of those acres were planted by farmers defensively, to protect their crops from being harmed by dicamba sprayed by neighboring farmers.

Amid the ongoing battle over dicamba, Corteva’s 2,4-D-tolerant crops have become more popular and with it the use of Corteva’s 2,4-D herbicide called Enlist. Corteva estimated in its most recent annual report filing with the Security and Exchange Commission that 45% of soybeans in North America – nearly 40 million acres in the US alone – were planted with Enlist seeds.

Aaron Hager, a weed science professor at the University of Illinois, said farmers in the nation’s top soybean producing state have largely switched to Enlist soybeans because of the difficulty of applying dicamba. 

The EPA acknowledged that the two crops are not interchangeable. For example, 2,4-D resistant crops could be harmed by dicamba and vice versa.

“For example, a grower cannot use 2,4-D on dicamba-tolerant seed because it would harm the crop — 2,4-D can only be used over the top of 2,4-D tolerant seed — and it is too late for growers to switch to 2,4-D tolerant seed,” the agency wrote in its decision document.

Dicamba was introduced to American agriculture in 1967, but was never widely used during warm months because it was well known that the chemical can volatilize and move long distances when temperatures climb. Volatilization is when dicamba particles turn from a liquid to a gas in the hours or days after the herbicide is applied, effectively turning into clouds of weed killer and causing landscape level damage.

Kim Erndt-Pitcher, director of ecological health at the nonprofit Prairie River Network, has helped conduct pesticide monitoring across Illinois for the last several years, which has found dicamba damage across the state. 

“We see injury on a wide array of plants from backyard vegetable gardens to landscaping trees and plants to large tracts of forests and nature preserves, as well as specialty crops,” Erndt-Pitcher said. “Once you know what the symptoms of herbicide injury look like, it’s pretty astonishing how widespread they are.”

“This is chemical trespass and it’s widespread, we need to solve this problem before we lose some of our most valuable species,” she said.