A federal court last week dismissed a lawsuit against the federal Environmental Protection Agency for its 2016 approval of dicamba, saying the issue was moot because the agency has since approved the herbicide's use for another two years.
The three-judge panel of the 9th U.S. Circuit Court of Appeals, however, said it will order an expedited schedule of briefings and arguments if the plaintiffs want to sue the EPA again for its decision in October to re-register dicamba through 2020.
Environmental and farm groups sued the EPA, alleging it disregarded the environmental effects of dicamba in December 2016 when it approved its use over the top of dicamba-tolerant soybeans and cotton. Thousands of complaints of dicamba damage to other crops and vegetation were filed in Arkansas and other states in 2017 and 2018.
"We disagree with the judges' decision," Steve Smith, owner of an Indiana tomato processing plant and longtime critic of dicamba's in-crop use, said Monday. "We don't think the EPA was right to begin with, so how could it be right now?"
The future use of dicamba in Arkansas is still undecided.
The plaintiffs' arguments that the EPA's 2018 decision is as flawed as the 2016 decision "may or may not be true, but we can only analyze the merits of that claim by reviewing the evidence in the new, expanded record," the 9th Circuit panel said in a decision released Thursday. The lawsuit was filed in federal court in Seattle.
The court said EPA's re-registration of dicamba included new research and new restrictions, including a 57-foot "omnidirectional buffer for the protection of endangered species."
Critics of the EPA's decision in October said a 57-foot buffer does nothing to protect endangered species or crops and vegetation not tolerant of dicamba, especially if the herbicide volatilizes as a vapor or gas hours after application and moves off target, sometimes for miles.
The Arkansas Democrat-Gazette reported in November that EPA scientists sought buffers as much as 443 feet between areas where dicamba is sprayed and where endangered species may exist. The EPA scientists' views were expressed in email exchanges with weed scientists in Arkansas. The newspaper obtained the emails through an Arkansas Freedom of Information request filed with the University of Arkansas System's Division of Agriculture.
The email exchanges showed that EPA scientists had a 196-foot buffer in mind on Oct. 3 but increased their recommendation to 443 feet two days later, after further study of UA scientists' work showing dicamba's propensity for off-target movement.
The EPA ultimately set the buffer for endangered species at 57 feet and didn't explain specifically how the 443-foot buffer recommended by its scientists came to be reduced. The new EPA regulations also require applicators themselves be certified, and not operating just under the supervision of a certified applicator.
The EPA also retained from its 2016 label a 110-foot downwind buffer to crops not tolerant of dicamba. Labels for chemicals and herbicides like dicamba, approved by the EPA, contain information about how they are to be handled and used.
Richard Coy of Jonesboro, a co-owner of the state's largest commercial beekeeping operation, told the Democrat-Gazette earlier this month that dicamba is killing vegetation key to bees' ability to pollinate. The damage, he said, has forced him to close his honey-processing business in Craighead County and begin the relocation of his hives to southern Mississippi, where dicamba is more rarely used.
Monsanto, now owned by Bayer, developed dicamba-tolerant soybeans and cotton to help farmers fight pigweed and other weeds now resistant to other herbicides. It also developed new formulations of dicamba that were supposed to be less susceptible to off-target movement, whether by drift as it was being sprayed or through volatilization or changes in weather.
The EPA sought dismissal of the lawsuit once it announced on Oct. 31 it would allow the re-registration of three dicamba formulations -- BASF's Engenia, DowDupont's FeXapan and Bayer's Xtendimax, which was developed by Monsanto.
All three companies say most problems of the past two years can be eliminated through training of applicators and strict adherence to instructions. Only BASF's Engenia has been allowed by the Plant Board in Arkansas the past two growing seasons, because it was the only formulation at the time that UA scientists had been able to study for volatility.
Arkansas regulators received more than 1,000 complaints of alleged dicamba damage in 2017, resulting in the state Plant Board's decision to ban in-crop use of dicamba after April 16 last year. Still, the board received about 200 complaints in 2018.
Seeking a compromise between farmers who want to use the herbicide in late season as weed pressure increases, and farmers and others seeking tighter restrictions or even a ban, the Plant Board has submitted a May 21 cutoff date this year.
That recommendation is now about one week into a required 30-day period for public comment that expires Feb. 5. It also must go to a public hearing, now set for 9 a.m. Feb. 20 at the Embassy Suites hotel in Little Rock.
Federal law allows states to tighten, but not loosen, the label set by the EPA. Arkansas is alone in requiring such public comment and hearings before such a change in regulations can be made. Any change also must go before the governor and lawmakers.
Smith, the Indiana tomato processor, said Arkansas has been ahead of other states for two years in tightening the use of dicamba.
Indiana officials, he said, recently announced the state will accept the federal label for dicamba's use and make no other changes. "There was a lot of pressure to set a state cutoff date and then, with no meetings, no public comment and with no notice at all, Indiana went with the federal label," Smith said.
In Missouri last year, officials set cutoff dates based on geography, with a stricter cutoff in the boot heel, based on scientists' findings that dicamba's tendency for off-target movement increases as temperatures and humidity levels climb. In November, Missouri's agriculture commissioner announced in November that the state also will accept the federal label and make no other restrictions.
The Tennessee Department of Agriculture also has announced it will follow the federal label with no changes.
The Minnesota Department of Agriculture set a June 20 cutoff date.
Other states have yet to update their regulations this year.
Business on 01/15/2019