EPA "substantially understated the risks", says judge

The Ninth Circuit court has dealt a blow to chemical company Monsanto by vacating the US Environmental Protection Agency’s approval of the controversial pesticide dicamba, saying the agency failed to properly assess the risks of its widespread chemical use, according to a report for Courthouse News.

The three-judge panel unanimously vacated the EPA approval of dicamba, a herbicide that has caused issues due to its tendency to drift when applied, thereby damaging neighbouring crops. The ruling effectively makes it illegal for farmers to continue to use the product.

“A review of the record shows that the EPA substantially understated the risks that it acknowledged,” wrote US Circuit Judge William Fletcher. “The review also shows that the EPA entirely failed to acknowledge other risks.”

Dicamba was developed by Monsanto, now owned by Bayer, in response to the spread of weeds that are resistant to glyphosate herbicide, sold commercially as Roundup. Monsanto marketed genetically engineered soybean and cotton seeds that tolerate being sprayed with dicamba. Thus when farmers planted those seeds, they could be sure that when they sprayed dicamba, it would only kill plants without the genetically engineered tolerance.

However, problems arose when dicamba drifted into neighboring fields and damaged the crops of farmers who are not using dicamba-tolerant seeds.

This problem led Arkansas and Missouri to ban the use of dicamba in 2017. A Missouri peach farmer won a multimillion lawsuit against Monsanto in January this year after a judge agreed the chemical damaged the farmer’s orchard.

Nevertheless, in 2018 farmers planted around 56 million acres of dicamba-resistant cotton and soybean seeds across the US. A litany of complaints followed from farmers who did not use such seeds but whose crops were hurt by dicamba drift.

The Ninth Circuit said the EPA dramatically understated the damage done during the 2018 growing season.

Fletcher wrote, “The EPA’s conclusion that complaints to state departments of agriculture of dicamba damage could have either under-reported or over-reported the actual amount of damage is not supported by substantial evidence. The record clearly shows that complaints understated the amount of dicamba damage.”

The court also blamed the agency for failing to try and collect data that would paint an accurate picture of the damage the herbicide was doing to farming across the country.