Just weeks after the U.S. Ninth Circuit Court of Appeals banned the herbicide dicamba in June 2020, Bayer for the Environmental Protection Agency to reinstate its controversial weedkiller, federal documents show.
Bayer had submitted an application for registration on July 3. Over the next few months, as more than , the EPA and Bayer stayed in contact, communicating over multiple versions of the label, .
The documents show the EPA sought “concurrence†with some of its proposed changes from Bayer and other makers of the herbicide, including chemical companies BASF and Syngenta. The EPA also allowed Bayer to .
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While there is normally some back-and-forth between the EPA and registrants of pesticides, these documents show the extent to which Bayer and other registrants influenced the reapproval of dicamba — even after a court found the EPA violated the law in a previous approval of the herbicide by showing too much deference to Bayer.
“The level of access and input here is really appalling. It’s more like the EPA is asking permission to make changes, rather than acceptance,†said Nathan Donley, Environmental Health Science Director at the Center for Biological Diversity. Donley obtained the documents in a Freedom of Information request and shared them with Investigate Midwest.
The Center for Biological Diversity is one of several conservation and farming organizations that successfully challenged the EPA’s 2018 approval of dicamba, which led to the controversial weedkiller being banned by the U.S. Ninth Circuit Court of Appeals in June 2020. The groups have filed another lawsuit, challenging the 2020 reapproval. That lawsuit is ongoing.
Bayer spokeswoman Susan Luke said in an email the company’s interactions with the EPA were “routine, professional, and consistent with all laws and regulations.†She pointed out that the EPA said it reviewed new information and made a science-based decision.
“The feedback so far from growers about the value of the system and the implementation of the new label changes is encouraging and we look forward to having a more complete view of the season in the coming weeks,†Luke said.
Ken Labbe, an EPA spokesman, said in an emailed response that the agency and registrants “are typically in communication throughout the label review process, which is usually iterative in nature.â€
“Both parties work together to develop label language that meets EPA’s health and environmental standards under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), while taking into consideration registrant input regarding label wording, formatting, and presentation,†Labbe wrote. “EPA will not approve a registration that doesn’t meet statutory standards.â€
Labbe said the 2020 decision was informed “by input from state regulators, grower groups, academic researchers, pesticide manufacturers, and others.â€
Donley said the EPA should grant similar access like Bayer has to other groups, such as farmers who have been harmed, weed scientists and state extension experts.
The weedkiller has skyrocketed in use in recent years, after Creve-Coeur-based agribusiness giant Monsanto — now owned by Bayer — introduced new soybean and cotton plants that are genetically engineered to withstand being sprayed by dicamba beginning in 2015. In that time, the herbicide, which has a tendency to move off of where it is sprayed and harm other plants, has been blamed for millions of acres of damage to crops and natural areas.
‘Anything else you need from Bayer’
The conversations between Bayer and the EPA went up to the last hours before the EPA announced the new registration last year.
The night before the EPA was set to announce the registration, the agency . Dan Kenny, chief of the Herbicide Branch of the Registration Division, sent Bayer a final draft of terms, minus the Herbicide Resistance Management Plan, which Bayer still needed to add in, at 5:28 p.m.
About an hour and a half later, another EPA staffer inquired: “Do you have an update?â€
Thomas Marvin, head of regulatory science for North America at Bayer Crop Science, responded one minute later.
“15 minutes, 20 tops.â€
More than four hours later, at 11:19 p.m., Marvin responded with the changes.
“All files attached with changes in redline. Changes limited to: edits discussed, typos, corrections, and minor clarifications. Please let me know if there is anything else you need from Bayer,†he wrote.
There was no response in the documents.
The next day, just hours before the EPA announced the changes, the EPA sought Ҡwith some of its proposed changes from Bayer, BASF and Syngenta.
Requiring less volatility
Because of the widespread damage caused by dicamba, the label for the weedkiller, which dictates how and where it may be sprayed, has been under significant scrutiny since it was approved in 2017.
Pesticide applicators have reported following all label requirements yet still having the weedkiller damage other crops that are not resistant to the weedkiller.
Each year, state and federal regulators have also changed the conditions under which dicamba can be sprayed in attempts to limit the damage.
For years, experts have said that volatility, when a liquid turns into a gas and stays in the air, is the main issue with dicamba. Damage from volatilization frequently occurs through a process called “,†which is when so much dicamba is sprayed at the same time that it is unable to dissipate and persists in the air for hours or days poisoning whatever it comes into contact with.
Bayer has denied for years that volatility is an issue with dicamba, but in last year’s reapproval process, Bayer requested that the EPA mandate that a volatility-reducing agent is used whenever dicamba is sprayed, according to the , based on 19 of Bayer’s studies on volatility.
In its final decision, the EPA enforced , including mandating the use of a volatility-reducing agent, increased buffer zones and a nationwide cut-off date after which dicamba could not be sprayed. The EPA said the changes gave the agency “90% confidence†that the damage would be eliminated.
Still, , with damaged in Arkansas alone.
Reapproval just days before election
In June 2020, the U.S. Ninth Circuit Court of Appeals by failing to properly consider the impacts on farmers and the environment. The court ruled the agency gave too much deference to Bayer and also was lacking necessary data to show too much harm wouldn’t be done. The ruling was in response to a challenge by conservation and farming groups.
Earlier this year, the EPA Inspector General, an internal agency watchdog, agreed with the court’s ruling, changed career scientists’ analyses and conclusions to support the reregistration of the herbicide dicamba in 2018.
But just days before the 2020 presidential election, President Donald Trump’s administration . Then-EPA Administrator Andrew Wheeler made the announcement with American Farm Bureau President Zippy Duvall.
Documents showed that the damage was worse than previously known. Documents show at least 65,000 soybean fields encompassing 4.1 million acres were damaged in 2018 alone, and that figures from Bayer and BASF, which make dicamba, underestimated dicamba damage by 25-fold.
President Joe Biden’s administration has continued to defend that decision as not political, something that George Kimbrell, legal director of the Center for Food Safety who has led the challenges of the dicamba approval, said is clearly not true.
“The approval took place three days before the presidential election in a cotton field in Georgia. It was timed and acted upon in a political way, especially with the way the election in Georgia went down,†Kimbrell said.
In the presidential election, Biden defeated Trump in the state by a margin of fewer than 12,000 votes.
Investigate Midwest is an independent, nonprofit newsroom that covers agriculture through in-depth and data-driven investigative journalism. It was previously the Midwest Center for Investigative Reporting.