In early 2016, agri-business giant Monsanto faced a decision that would prove pivotal in what since has become a sprawling herbicide crisis, with millions of acres of crops damaged.

Monsanto had readied new genetically modified soybeans seeds. They were engineered for use with a powerful new weed-killer that contained a chemical called dicamba but aimed to control the substance’s main shortcoming: a tendency to drift into neighboring farmers’ fields and kill vegetation.

The company had to choose whether to immediately start selling the seeds or wait for the U.S. Environmental Protection Agency to sign off on the safety of the companion herbicide.

The firm stood to lose a lot of money by waiting. Because Monsanto had bred the dicamba-resistant trait into its entire stock of soybeans, the only alternative would have been “to not sell a single soybean in the United States” that year, Monsanto Vice President of Global Strategy Scott Partridge said in an interview.

Betting on a quick approval, Monsanto sold the seeds, and farmers planted a million acres of the genetically modified soybeans in 2016. But the EPA’s deliberations on the weed-killer dragged on for another 11 months because of concerns about dicamba’s historical drift problems.

That delay left farmers who bought the seeds with no matching herbicide and three bad alternatives: Hire workers to pull weeds; use the less-effective herbicide glyphosate; or illegally spray an older version of dicamba at the risk of damage to nearby farms.

The resulting rash of illegal spraying that year damaged 42,000 acres of crops in Missouri, among the hardest hit areas, as well as swaths of crops in nine other states, according to an August 2016 advisory from the U.S. Environmental Protection Agency. The damage this year has covered 3.6 million acres in 25 states, according to Kevin Bradley, a University of Missouri weed scientist who has tracked dicamba damage reports and produced estimates cited by the EPA.

The episode highlights a hole in a U.S. regulatory system that has separate agencies approving genetically modified seeds and their matching herbicides.

Monsanto has blamed farmers for the illegal spraying and argued it could not have foreseen that the disjointed approval process would set off a crop-damage crisis.

But a review of regulatory records and interviews with crop scientists shows that Monsanto was repeatedly warned by crop scientists, starting as far back as 2011, of the dangers of releasing a dicamba-resistant seed without an accompanying herbicide designed to reduce drift to nearby farms.

In 2015, just before Monsanto released its soybeans seeds, Arkansas regulators notified the firm of damage from illegal spraying of its dicamba-resistant cotton seeds. Some cotton farmers chose to illegally spray old versions of dicamba because other herbicides approved for use on the seeds were far less effective.

The EPA did not approve the new dicamba formulation that Monsanto now sells for use with cotton and soybean seeds — XtendiMax with Vapor Grip — until after the 2016 growing season.

Monsanto’s Partridge acknowledged that the company misjudged the regulatory timeline for approval of its new herbicide.

“The EPA process was lengthier than usual,” Partridge said.

Monsanto, however, denies culpability for the crisis that followed the two-stage approval.

“The illegal misuse of old dicamba herbicides with Xtend seeds was not foreseeable,” the company’s attorneys said in a response to one class action suit filed by farmers in Missouri. “Even if it were foreseeable that farmers would illegally apply old dicamba to their Xtend crops, which it was not, Monsanto is not liable for harms caused by other manufacturers’ products.”

Monsanto’s Partridge said in a written statement that the reports of damage from illegal spraying of dicamba on its cotton seeds in 2015 were “extremely isolated.”

“Those who applied dicamba illegally should be held responsible,” Partridge said.

Monsanto’s handling of the delayed herbicide approval may cause the firm legal and public relations damage, but it has boosted the company’s business considerably. Instead of halting seed sales while waiting on herbicide approval, Monsanto captured a quarter of the nation’s massive soybean market by the start of 2017, according to the U.S. Department of Agriculture.

Even the damage from dicamba may have boosted sales. Some farmers whose crops were harmed said in interviews that they bought Monsanto’s new dicamba-resistant seeds as a defense against drift from nearby spraying.

State regulators believe the illegal spraying of dicamba-tolerant cotton and soybean crops continued in 2017 — after the EPA approved Monsanto’s new herbicide. Farmers would still benefit from using old versions of dicamba because it is cheaper than XtendiMax. Many growers also have dicamba on hand because it is legal to use for limited purposes.

Regulators have not yet determined, however, how much damage came from illegal spraying and how much came from the legal application of XtendiMax, which weed scientists say still vaporizes under certain conditions.

Monsanto concedes that XtendiMax has caused crop damage, but blames farmers who the company says did not properly follow directions for applying the herbicide.

The EPA, after delaying a decision on XtendiMax, gave the herbicide a limited two-year approval — as opposed to the standard 20 years — in case drift issues arose.

A U.S. Department of Agriculture spokesman, Rick Corker, acknowledged in a statement that the release of an engineered seed before its companion herbicide caused problems. The department, he said, is now in talks with the EPA about whether to coordinate approvals of paired seeds and chemicals.

“USDA and EPA are in discussions regarding the timing of our deregulations,” Corker said in a statement.

The EPA did not comment on whether it planned any policy changes in response to the dicamba crisis.

Early warnings

Dicamba is cheap, plentiful, and has been used as a weed killer for decades. But its tendency to damage nearby fields had caused U.S. regulators to limit its use to the task of clearing fields before planting or after harvest, when there are no crops to damage and cooler temperatures make it less likely the substance will migrate.

Farmers who illegally sprayed dicamba during growing season are now facing fines of up to $1,000 for each violation of EPA rules limiting the use of dicamba, which are enforced by state regulators.

Farmers with damaged crops have filed at least seven lawsuits — five class-action suits and two by individuals — seeking compensation from Monsanto. The suits claim the company should have known that releasing the seeds without a paired herbicide would cause problems.

Monsanto officials had been repeatedly warned of the potential for damage from illegal spraying of dicamba on seeds designed to resist the chemical.

In October 2011, five scientists from Ohio State University addressed a conference in Columbus focused on the future of dicamba. In attendance were agriculture researchers from across the country as well as representatives of the companies Monsanto, Dow Chemical and BASF.

According to Douglas Doohan, one of the conference’s organizers, three Monsanto employees, including Industry Affairs Director Douglas Rushing, attended the meeting. Monsanto had a keen interest in the topic because the company was far along in developing its new line of dicamba products at the time.

In their introduction to the symposium, Doohan and his colleagues outlined what they called an increased risk of illegal dicamba spraying by farmers once dicamba-resistant seeds became available. They also argued that dicamba-resistant seeds — and the illegal spraying that might accompany them — would lead farmers whose crops were damaged to buy their own dicamba-tolerant seeds to protect themselves from further drift, according to conference records.

In another general session, Doohan said, he and Ohio State Professor Joe Heimlich outlined the risks of illegal spraying in a memorable way — a skit in which Doohan played a farmer digging out an old container of dicamba to spray on his dicamba-resistant crops, without regard for regulatory standards.

Monsanto’s Rushing gave his own presentation about dicamba to the symposium, according to conference records. Rushing explained the need for a new herbicide-and-seed combination to replace those that had grown less effective as weeds become more tolerant to certain chemicals, according to slides outlining Rushing’s conference presentation. He raised the issue of damage from dicamba drift, but said the risks could be reduced by using certain kinds of sprayers and taking other precautions.

Rushing could not be reached for comment. Monsanto did not directly respond to questions about the symposium.

Damage reports

Years later, some of what the scientists outlined in their presentations was becoming reality.

Monsanto released its dicamba-resistant cotton seed in the summer of 2015. The seed was compatible with two other legally available herbicides, giving farmers options for dealing with weeds before the EPA’s approval of XtendiMax.

But farmers started digging into their dicamba stockpiles anyway, and damage reports started to trickle in. Monsanto officials were among the first to see those reports, according to minutes of an Arkansas Plant Board committee meeting in July 2015.

Jammy Turner, a Monsanto salesman, was on the Arkansas Plant Board, the agricultural regulator that investigated the complaints. He and Duane Simpson, a Monsanto lobbyist, attended the committee meeting. There, the board’s Pesticide Division Director Susie Nichols gave a report about drift damage complaints linked to the new seed technology.

At that meeting, lobbyist Simpson was asked by the board what Monsanto was doing about drift damage complaints, according to the minutes. Simpson told the committee that the firm had been telling farmers not to spray dicamba illegally, even over crops specifically designed to withstand it. He said the company would consider pulling whatever licenses Monsanto had given to offending farmers to use its technology.

At an Aug. 8, 2016 meeting of the same committee, Simpson was asked again how Monsanto was dealing with farmers illegally spraying dicamba on Xtend crops. This time, he responded that Monsanto saw no way to pull farmers’ seed licenses over the issue.

Monsanto did not comment on Simpson’s statements in response to written questions. The company said it would consider revoking a particular farmer’s license if asked to do so by state regulators “when they have investigated and adjudicated an egregious violation.”

Larry Steckel, a weed scientist and professor at the University of Tennessee, said those early damage reports should have been a red flag to Monsanto against releasing its soybean seeds the following year.

“It turned out to be a precursor of what was to come,” he said.

Neither Turner nor Simpson responded to calls and emails seeking comment. Monsanto did not comment on the company’s involvement in the Arkansas investigations.

By the end of 2015, the damage reports linked to the Xtend cotton seeds were making the rounds among scientists. Weed scientist Michael Owen, a professor at Iowa State University, said he warned at the ISU Annual Integrated Crop Management Conference in December 2015 that no dicamba formulations had been approved for use on Xtend crops. He told attendees it wasn’t clear when the formulas would be greenlighted, and that the situation was cause for concern.

Monsanto representatives attended that conference, according to ISU Program Services Coordinator Brent Pringnitz, who handled the registration. He would not identify them.

Owen said he also repeated his warning directly to Monsanto officials around the same time, but did not name them.

Monsanto did not comment on Owen’s assertion that he warned the company about dicamba spraying.

Flawed assumptions

Farmers gave testimony recorded in state records described a variety of reasons why they purchased Xtend seeds before XtendiMax was available.

One farmer in Arkansas, Doug Masters, planted Xtend cotton in 2015 and was caught illegally spraying dicamba, according to Arkansas Plant Board records. He said the Monsanto salesman who sold him the Xtend seeds told him that, by the time the plants came up in the summer of 2015, it would be legal to spray dicamba and he should go ahead and do it, according to the board records.

Masters declined to identify the Monsanto salesman to Arkansas regulators, records show. He declined again, when reached by Reuters, to identify the representative. Masters admitted that he illegally sprayed dicamba, and the Plant Board fined him $4,000, assessing the maximum penalty allowed for four violations.

Monsanto did not comment on Masters’ testimony to the plant board.

Ritchard Zolman, another Arkansas farmer caught illegally spraying his cotton in 2015, said in a disciplinary hearing held by the Arkansas Plant Board that he’d planted Xtend seeds because he thought he could spray dicamba legally over his fields 14 days before his crops came up from the ground, according to records.

But the Plant Board ruled it was illegal to spray dicamba onto a field where planted crops had not yet sprouted, disciplinary records show. Zolman was fined $3,000 for three dicamba spraying violations, records show.

Zolman declined to comment.

In Missouri, Gary Dalton Murphy III said he and his family planted Xtend soybeans in 2016 after “hearing” that dicamba would be legal to spray by the summer. He did not say who told him dicamba would be legal that season.

When Murphy learned XtendiMax would not be available, the family got rid of their weeds by hand, hiring extra workers to help.