US: Soybean, cotton growers sue EPA over dicamba use restrictions

Date:11-09-2020

The American Soybean Assn. (ASA) and the Plains Cotton Growers have filed a lawsuit against the U.S. Environmental Protection Agency's registration of the herbicide dicamba for use on soybean and cotton crops genetically engineered to withstand "over-the-top" applications of dicamba.

EPA's recent five-year registration decision will arm growers with an essential weed management tool for the 2021 growing season and beyond. However, the lawsuit claims that some aspects of the registration decision, including buffer requirements and application cutoffs, are "problematic for growers, who depend on reasonable, consistent access to dicamba for use on [dicamba-tolerant] soybeans and cotton."

"We appreciate EPA's efforts to re-register dicamba for use on soybeans but would like to bring attention to a couple of issues for further consideration: first, the buffers that will be imposed, and secondly, the June 30 usage cutoff date for soybeans," ASA president Bill Gordon, a grower from Worthington, Minn., said. "Dicamba is a vital tool in our crop protection toolbox to effectively manage damaging weeds, and we fully support leaving access to dicamba and the remainder of the new registration intact."

EPA recently registered dicamba for use on dicamba-tolerant soybeans and cotton under the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA). In so doing, EPA imposed an array of application and use conditions on soybean and cotton growers, who are the end users of the dicamba product.

"In particular, several registration conditions impose growing restrictions and disrupt growing seasons, which will diminish crop yields, cut productivity and drive up operational costs. Some of these conditions are significantly more stringent than those found in past dicamba registrations," the lawsuit noted.

The lawsuit challenges the conditions as going beyond EPA's authority under FIFRA, the Endangered Species Act (ESA) and the Administrative Procedures Act (APA). More specifically, this case seeks a remand of EPA's temporal dicamba application restrictions and spatial application buffers.

The grower groups acknowledged that EPA's benefit and impact analyses were thorough, spanning more than 450 pages. Both the "Soy Benefits Assessment" and the "Cotton Benefits Assessment" concluded that registering dicamba "gives many growers increased flexibility," creates "a cost-effective way to control problematic broadleaf weed species" and adds "an additional tool to delay the further development of herbicide resistance."

Despite these findings, however, the dicamba decision imposed a range of conditions on growers, including "several that will limit yields, increase operational costs and erode productivity," the grower groups said in their lawsuit. Three conditions are particularly limiting: date-dependent application restrictions (the "application restrictions"), ESA-based application buffers (the "ESA buffers") and FIFRA-based application buffers (the "FIFRA buffers").

Regarding the June 30 application cutoff date for soybean growers and the July 30 date for cotton growers, the lawsuit stated how heavy spring rains, flooding, wind and hail from severe storms and other acts of God can force soybean and cotton growers into planting or replanting their crops as late as June. The application restrictions are particularly troublesome for Texas High Plains cotton growers.

In addition, the June 30 cutoff will likely leave thousands of late-season soybean growers largely defenseless against weeds. For example, waterhemp routinely emerges as late as July and August, and often in glyphosate-resistant form.

In addition, growers must also abide by a 240 ft., universally controlling, downwind FIFRA application buffer. The lawsuit details that the average soybean farmer - who farms a 54-acre field and lives in an ESA-restricted county - would lose a third of the farmable land to the ESA buffer, which is 310 ft. That grower must either leave 15 acres fallow every year or sacrifice almost a third of their soybean harvest.

The FIFRA buffers are more than twice the size of their 2018 registration precursors. "These 240 ft. buffers can conservatively require the average soybean grower to set aside over 520,000 sq. ft. of cropland," the lawsuit claims.

EPA's dicamba decision and ESA assessment found that, under the ESA, registering the dicamba products would have "no effect" on certain listed species and critical habitat (the "no effects determinations") and found that, under the ESA, registering the dicamba products was "not likely to adversely affect" a potentially affected species (the "NLAA determination").

Therefore, the groups also want the court to declare that EPA's no effects determinations and NLAA determination fully comply with the applicable law, including FIFRA, APA and ESA.

The court documents state that, "without dicamba products in their arsenal, many farms would be largely defenseless in their fight against weeds. A handful of other herbicides remain available but are often only partially effective, if at all."