Guest blog post by Summer Legal Intern Seth Sherman
On June 4th, 2020 the Ninth Circuit Court of Appeals vacated the EPA’s approval of the use of three different types of dicamba, a herbicide developed by Monsanto. They did so stating that the EPA, “...substantially understated the risk that it acknowledged.” Dicamba is a herbicide developed by Monsanto, that was approved in late 2016 as a replacement for another dangerous herbicide “Round-Up”. Many common weeds had grown resistant to Round-Up along with many other common herbicides. While not as dangerous to people as Round-Up is, dicamba has still been making the farmers that use it sick. The true harm of dicamba that the Ninth Circuit focused on when it vacated the approval of it, however, was the harm it causes to the environment and nearby farms.
Monsanto developed this new herbicide, along with genetically modifying their crops to be resistant to it, so that they could be used in conjunction. But this necessitates that farmers buy both their seeds and herbicides from the same manufacturer. If you would like to read more about how Monsanto, and other industrial agriculture corporations control and harm the environment and their farmers, you can read more here. So what happens if you are a neighboring farmer to a farm that is using dicamba, and you are not using dicamba resistant crops? What happens to the natural plant life, surrounding the farm, or the gardens and flowerbeds of the neighboring homes? The answer is unfortunately very simple, they die. Natural occurrences like wind and the movement of groundwater, allows for dicamba to not be defined by property lines. This led to intense dispute between farmers, as this pesticide was both necessary for the preservation of one of their crops, and would lead to the destruction of the other’s. It is this exact scenario that prompted both Arkansas and Missouri to ban the use of dicamba just a year after its EPA approval, along with the successful suit of a Missouri farmer against Monsanto for the destruction of their peach orchard.
When it comes to the scientific or technical facts of a case, judges and the courts very often defer to regulatory agencies like the EPA when they make findings about something like, I don’t know, the safety of a herbicide. So it really highlights the poor judgement of the EPA in approving dicamba, when a panel of judges unanimously finds they did not consider important facts. But to put it bluntly, anyone really should have seen this coming. Anyone who knows how damaging dicamba is to plants, as that is the intended purpose of it, along with understanding how the wind works, would be able to know that this is a bad idea. Requiring all farmers to use the same seeds and herbicides from the same few manufactures, is a ridiculous way to overcome the harms from that herbicide.
So, the question remains, how did dicamba still get approved by the EPA? Again, the answer is very simple, corporate influence. To me it is the only explanation that makes sense, as the evidence against the usefulness of dicamba was enormous. One study found that in order for farmers to spread dicamba within the exact requirements set forth by the EPA, they would have a total of 47 hours per season in which they would be able to ‘safely’ spray in a way that would not disrupt neighbors or the surrounding environment. The EPA necessarily had to ignore known risks associated with dicamba, in order to approve it. A decision I believe was done as the use of dicamba would dramatically benefit Monsanto both economically and strengthen its monopolistic hold on the agricultural industry.
Gross purposeful misrepresentation of the health and environmental risks of dicamba is what the EPA did, and the Ninth Circuit shredded them for it. Justice Fletcher wrote in criticism of the EPA’s lack of mentioning these risks during the approval process, “The EPA nowhere acknowledged the evidence in the record showing there had been substantial difficulty in complying…” But interestingly, Justice Fletcher also very concerned with the social/human costs that the use of dicamba was having on these agricultural communities, “The severe strain on social relations in farming communities where the new dicamba herbicides are being applied is a clear social cost, but the EPA did not identify and take into account this cost.”
This really highlights the troubling theme surrounding all communities whose functioning is largely dictated by industry. Industry makes profit driven inconsiderate decisions, the regulators meant to curb that type of behavior allow it, and then it is the people in these communities that really suffer. So, one would hope that the Court system can be a counter to this harmful and unfair system. While that can sometimes be true, this case cannot be used as a shining example. Just a few weeks later on June 19th, 2020, that same Ninth Circuit Court, denied an emergency motion to halt the use of dicamba. The Court allowed for the usage of ‘existing stocks’ of dicamba through July 31st, 2020. The reasoning for this denial is due to the judges being persuaded by manufacturers of dicamba claim that the immediate halting of its use would cause “irreparable harm”, the type of harm, of course, being economic.
Overall, I believe what should be the takeaway from this case is a healthy distrust for regulators that make decisions that facially benefit the industry they are supposed to regulate, even when those decisions are at the cost of the communities that live within and near that industry. As in the current case, once farmers realized that their enemy was not their neighboring farmer using the herbicide, but the corporation that manufactured it, and the regulator that allowed it, it is then that this somewhat successful suit was able to occur. These communities have power when they organize and work together.
