ST. LOUIS — Top-selling forms of dicamba, the weedkiller that has ignited widespread controversy across agriculture for much of the last decade, can no longer be sprayed over the tops of crops across the U.S., according to a federal court ruling issued in Arizona.
The ruling strips federal approvals of the product sold by three leading manufacturers — Bayer, BASF, and Syngenta — forbidding it from being applied on top of soybean and cotton varieties that are engineered to withstand the herbicide, and that have helped it become so widely used.
The decision, issued Tuesday, affects such dicamba use in all 34 states where it had previously been approved by the U.S. Environmental Protection Agency, including in Missouri and other Midwestern farming powerhouses.
If it stands, the decision is sure to send shockwaves through the agriculture world — with implications for farmers who use it, and for others who have complained of wide-ranging damage to crops, plants, and trees, sparked by the chemical, which is known to vaporize and drift “off target.”
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The EPA said in an email on Wednesday that it was “reviewing the decision.”
Bayer — which sells both the chemical and the “dicamba-tolerant” seed varieties, originally developed by Creve Coeur-based Monsanto — said that its path forward would largely hinge on the agency’s response or guidance.
“We respectfully disagree with the ruling against the EPA’s registration decision, and we are assessing our next steps,” Bayer said in an emailed statement. “Our top priority is making sure growers have the approved products and support they need to safely and successfully grow their crops. We will keep our customers updated as we learn more from the EPA in advance of the 2024 growing season.”
Industry experts and analysts said the chemical companies could negotiate something short of an all-out ban.
“But it is an important product for Bayer,” said Damien Conover, a stock analyst with Morningstar. “If this case leads to them being unable to sell product in the U.S. — that’s a significant setback.”
Meanwhile, the ruling was cheered by food and environmental organizations, such as the Center for Food Safety and the Center for Biological Diversity, among the groups that sued to block the chemical’s use.
“Dicamba has plainly caused some of the worst damage (to U.S. farms) we’ve ever seen,” Meredith Stevenson, the staff attorney leading the Center for Food Safety’s involvement with the case, said in a phone interview Wednesday.
The legal clash marks merely the latest conflict in dicamba’s contentious, and litigious, history. Though the chemical has been around for several decades, in the last 10 years, agribusiness titans such as Monsanto catapulted it into a top option for farmers, as weeds developed resistance to alternative herbicides like Roundup.
Use of dicamba skyrocketed after the company introduced cotton and soybean varieties that were engineered to withstand it — allowing farmers to spray those crops directly. But its soaring use has accompanied damage complaints on millions of acres of other farms — and even forests — where crops and plants are susceptible to harm.
Dicamba disputes have created a substantial rift in agriculture, on one hand helping unlock major yields for many adopters, but also pitting neighbor against neighbor. The controversies have fueled a pipeline of lawsuits — spanning row crops, vineyards, orchards, and beekeepers — along with state-by-state legal wrangling about how to manage the products.
One lawsuit, for instance, resulted in a jury saying that a Missouri peach farmer was entitled to a massive payout for damages to his orchard, with liability shouldered by dicamba producers like Bayer and BASF. Meanwhile, other cases — like the one in Arizona — have challenged the EPA’s underlying approval of the chemical to be sprayed “over the top” of crops.
In the Arizona case, Judge David Bury said that the EPA had improperly “sidestepped” legal requirements about public comments surrounding dicamba — a “very serious” procedural error, he wrote.
“The EPA denied the public its statutory right to meaningfully weigh in during the decision-making process,” Bury wrote. He added that, since 2016, groups opposed to or at risk from dicamba have not been “afforded an opportunity to be heard to create a record of objections to be considered by the EPA.”
More details accompanying the ruling are expected to be released in the next week or so, said Stevenson, the food center attorney. That might help explain, for instance, how to handle dicamba products that are currently for sale or that farmers may already have in their possession.
In June 2020, a similar ruling that temporarily barred dicamba products from use allowed those who had already purchased it to use it that year.
But this latest court decision — coming in February, ahead of planting — could be different, and come with far narrower exceptions, if any, Stevenson said.
And this one might be lasting, she thinks, instead of quickly reversed. The 2020 decision, for instance, was negated by the EPA just four months later, when the agency reapproved over-the-top use of the dicamba in question.
“I’d be shocked if EPA tried it again,” said Stevenson. “This product is repeatedly causing national damage. ... It’s just catastrophic.”
Annika Merrilees of the Post-Dispatch contributed to this report.