SF Appeals Court Rejects EPA Approval Of Dicamba Herbicide

A U.S. Circuit Court of Appeals in San Francisco overturned the EPA's approval of dicamba-based farming products. Photo courtesy of Dan Meyers.

SAN FRANCISCO—On Wednesday, June 3, the 9th U.S. Circuit Court of Appeals in San Francisco ruled against the Environmental Protection Agency’s approval of an herbicide named dicamba.

The case went before a panel of three judges including Michael Daly Hawkins, Margaret McKeown, and William Fletcher.

The court held that the EPA did not adequately recognize the substantial environmental risks of dicamba before granting its approval and thus violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

Dicamba is a chemical that was originally registered as an herbicide in 1967. It disrupts cell growth in plants in order to kill them. It is an extremely toxic substance that can cause damage to a variety of vegetation, even large trees like oaks and maples. The vaporized chemical is known to drift for hours or days after it is first sprayed.

Due to its tendency to travel beyond its targeted area, dicamba has been known to cause unintended off-site harm to other plants, as stated in Wednesday’s court opinion, written by Fletcher.

In 2016, the EPA approved the usage of three dicamba-based products called XtendiMax With VaporGrip Technology, Engenia Herbicide, and DuPont FeXapan Herbicide. These products were developed by the Monsanto Company, an agricultural biotechnology corporation, which was acquired by Bayer AG, an international pharmaceutical company, in June 2018.

In October 2018, the EPA re-approved Monsanto-Bayer’s dicamba-based products for an additional two years.

Christopher Loder, Vice President of External Communications at Bayer, told the San Francisco News, “The EPA’s informed science-based decision reaffirms that this tool is vital for growers and does not pose any unreasonable risks of off-target movement when used according to label directions.”

However, as a result of Wednesday’s ruling, Bayer has halted the sale and distribution of its XtendiMax product

In a public statement regarding the court’s decision, Bayer contested the ruling and said, “Depending upon actions by the EPA and whether the ruling is successfully challenged, we will work quickly to minimize any impact on our customers this season. Our top priority is making sure our customers have the support they need to have a successful season.”

The lawsuit was brought on by the National Family Farm Coalition, the Center for Food Safety, the Center for Biological Diversity, and the Pesticide Action Network of North America.

Lori Ann Burd, the Environmental Health Program Director and Senior Attorney at the Center for Biological Diversity, told the San Francisco News, “This ruling is a powerful rebuke to EPA and the pesticide industry for continuing to allow the use of a product that simply is too dangerous to be on the market…dicamba can no longer be sprayed on around 60 million acres of cotton and corn, a massive relief for all those who suffered from its harms.”

Bayer intends to base its next steps on the EPA’s response, which is in the process of being formed.