First Look

Dicamba Legal Battles

The Xtend trait system received a midseason blow when the 9th Circuit Court of Appeals vacated the labels for the complementary herbicides XtendiMax, FeXapan and Engenia on June 3. The judges concluded that EPA broke federal law when it issued conditional registrations for the three dicamba herbicides in 2018, because the agency had ample evidence that they posed a major risk of "adverse unreasonable effects" to the environment at the time.

Much is yet to come as companies seek to register these herbicide labels again in 2020. In the verdict, the judges deemed the EPA made the following errors in their 2018 decision:

> The agency didn't correctly assess how many acres dicamba would be used on in 2018 (nearly 60 million acres, as it turned out), even though that information was available.

> In their assessment, EPA stated that dicamba injury complaints from state pesticide regulatory agencies may be either underreported or overreported when there was ample evidence of the former and no evidence for the latter.

> EPA never even attempted to measure the off-target dicamba injury that had occurred on the landscape since 2017, nor would the agency formally acknowledge that widespread injury had occurred.

> The agency ignored the likelihood that the incredibly complex labels they were issuing would be difficult to follow and would result in noncompliance.

> EPA ignored the "anticompetitive effect" of the registration, given evidence that many growers felt compelled to switch to dicamba-tolerant crops just to protect themselves from off-target injury.

> Finally, the EPA ignored growing evidence of a painful social cost of in-season dicamba use to rural agricultural communities, such as strained neighbor relationships, uncompensated property damage and even one murder in 2016 after an argument over the technology.


Past Issues