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As U.S. soybean and cotton farmers work to get their 2020 crops planted, the U.S. Ninth Circuit Court of Appeals heard oral arguments Tuesday in a case that has the potential to disallow the spraying of dicamba this growing season.

The lawsuit, filed by farming and conservation organizations the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity and Pesticide Action Network, alleges that the U.S. Environmental Protection Agency unlawfully approved the herbicide for use on genetically engineered soybean and cotton seeds made by Monsanto.

Since new versions of dicamba made by Monsanto and BASF were released for the 2017 growing season, the off-target movement of dicamba has damaged millions of acres of non-resistant crops and natural areas each year. The EPA originally approved dicamba in 2016 for two years and then re-affirmed that decision in 2018, requiring Bayer, which bought Monsanto in 2018, to submit additional studies on off-target movement of dicamba.

The federal lawsuit alleges that the agency violated the Federal Insecticide, Fungicide and Rodenticide Act, commonly referred to as FIFRA, by not having enough evidence to support its decision, including not having a single study looking at how dicamba moving off-target affects soybean yield. The lawsuit also alleges the EPA violated the Endangered Species Act by not consulting with the U.S. Fish and Wildlife Service on whether dicamba would harm endangered species and used arbitrary and capricious science to develop a 57-foot buffer to protect endangered species.

Plaintiffs, EPA lawyers and an attorney representing Bayer conducted one hour of arguments in a video conference in front of a three-judge panel on Tuesday afternoon.

The judges were largely silent during the argument laid out by lawyers from the Center for Food Safety, but spent most of the EPA’s allocated time asking questions.

Circuit Judge William Fletcher questioned Sarah Buckley, a trial attorney with the U.S. Department of Justice who represented the EPA, about the agency’s claim that while many experts said the number of complaints filed about dicamba in 2017 and 2018 was likely an underestimate, others said it could be an exaggeration.

Buckley pointed to a Monsanto white paper that said the complaints were likely overestimated and other factors to blame for much of the damage, but Fletcher said he meant anyone other than Monsanto.

“I was unable to find who those others might be other than Monsanto,” Fletcher said.

Fletcher also said that Monsanto seemed to always find corn nearby to blame dicamba drift on.

“The problem with that (argument) is the uses on corn have been consistent over time.,” Fletcher said.

Judge M. Maraget McKeown also asked Buckley about the plaintiff’s argument that the label for dicamba is so complicated it is nearly impossible to follow. Buckley said the label was made carefully to make sure there were not issues with the herbicide.

Bayer has said it stands by its XtendiMax with VaporGrip dicamba herbicide and joined the case as an intervenor to help defend the EPA’s “science-based decision,” the company said in a statement.

Richard Bress, an attorney representing Bayer, argued that the lawsuit was not filed in time to be considered, and that if plaintiffs do win the case, the court should not disallow spraying this growing season because it would cause chaos and farmers would use other herbicides that would pose a greater risk to endangered species and the environment.

When asked, Bress denied he implied farmers would illegally spray pesticides;  instead, he said, farmers would choose to spray other pesticides that have been approved by the EPA but not as extensively studied. 

George Kimbrell, legal director of the Center for Food Safety, said that there is no evidence that not spraying 25 million pounds of dicamba this season would be worse for the environment.

“With vacateur, that (spraying) doesn't happen,” Kimbrell said. 

Documents included as part of the lawsuit show that the EPA ignored its own scientists’ recommendations for a larger buffer zone around fields to protect endangered species and that many independent researchers also warned the EPA that its proposed label changes for 2018 would not be effective.

J. Brett Grossko, a senior trial attorney with the U.S. Department of Justice, argued that the agency relied on the best available science and consideration of dozens of academic studies to develop the buffer.

The court did not indicate when it will make a decision, but it will likely be made sometime in the coming months.

The lawsuit, originally filed to challenge the agency’s 2016 decision to approve dicamba, was already heard once by the Ninth Circuit Court in August 2018, but the case was mooted out by the EPA’s October 2018 decision to reapprove the herbicide for two years. As a result, the Ninth Circuit expedited this case to ensure it is heard before the EPA makes another registration decision later this year.

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