The ninth circuit court of appeals is being asked to overturn the EPA’s approval of a Monsanto herbicide that is allegedly a threat to farm crops across the US

The US Environmental Protection Agency is due in federal court on Tuesday to answer allegations that it broke the law to support a Monsanto system that has triggered “widespread” crop damage over the last few summers and continues to threaten farms across the country.

As farmers prepare to plant a new season of key American food crops, farmer and consumer groups are asking the ninth circuit court of appeals in San Francisco to review and overturn the EPA’s approval of a Monsanto herbicide made with a chemical called dicamba.

Revealed: Monsanto predicted crop system would damage US farms Read more

The allegations are from the National Family Farm Coalition, which represents tens of thousands of farmers across the US, and three non-profit consumer and environmental groups. They have been granted an expedited review of their legal petition and hope for a ruling that would block use of the herbicide this summer.

The court hearing, which is to be handled by phone due to the coronavirus closing of California courthouses, comes just a month after the office of inspector general for the EPA said it would open an investigation into the agency’s handling of dicamba herbicides.

Farmers have reported dicamba damage in both organic and conventional crops, including non-GMO soybeans, wheat, grapes, melons, vegetables and tobacco. A Missouri peach farmer won a $265m verdict in February against Monsanto and German chemical giant BASF after accusing the companies of creating a “defective” crop system that damaged 30,000 peach trees.

The Guardian reported last month that internal Monsanto documents obtained through the peach farmer litigation revealed that Monsanto predicted its dicamba crop system would lead to thousands of damage claims from US farmers but pushed ahead anyway, trying to downplay the risks to the EPA.

“You’ve had millions of acres impacted,” said George Kimbrell, a lawyer with the Center for Food Safety, which is one of the environmental groups seeking court review of the EPA, alongside the Center for Biological Diversity and Pesticide Action Network.

Kimbrell said: “They decided to make farmers part of an ongoing experiment. The dicamba problem is unprecedented.”

EPA approval

The crop system in question was developed by Monsanto with help from BASF to encourage farmers to buy dicamba herbicides and spray them over the top of new genetically engineered soybean and cotton crops developed by Monsanto to tolerate dicamba. The altered crops survive dicamba spray but weeds die, making it easier for farmers to eradicate weeds resistant to other herbicides such as Monsanto’s glyphosate.

Before the introduction of Monsanto’s dicamba-tolerant cotton in 2015 and soybeans in 2016, farmers were largely restricted from using dicamba during the growing season because the chemical can easily drift and vaporize, traveling long distances from where it is sprayed. But the release of the new dicamba-tolerant crops upended that restraint and the EPA subsequently approved “new use” dicamba products sold by Monsanto, BASF and Corteva Agriscience for treating fields planted with the genetically engineered cotton and soybeans.

The companies said their herbicides would have low volatility and if farmers followed instructions on the product labels, they could prevent drift. But since the introduction of the new dicamba-tolerant soybeans and cotton, drift and volatilization has killed or injured a variety of crops, fruit trees and other plants across several millions acres.

Costs to farmers

The consumer and environmental groups claim the EPA violated federal law by failing to analyze the “significant socioeconomic and agronomic costs to farmers” and not relying on adequate data in its approvals of the herbicides. The damage over the last few summer seasons has been “catastrophic” they claim.

The groups cite government documents they say show that the EPA itself has downplayed or ignored warnings from state agricultural officials and farmer pleas for protection from dicamba drift. Instead the agency has worked closely with Monsanto to keep the company’s dicamba herbicide, called XtendiMax, on the market, they say.

Documents filed in court show Monsanto met multiple times with EPA officials about the concerns, even editing EPA language about certain steps Monsanto should take in communications with retailers. In an October 2017 email, an EPA official forwarded a Monsanto official comments from the agency regarding the company’s product label, writing: “Like I said, no surprises.”

While the EPA worked with Monsanto, the records show the agency was well aware of the extent of crop damage being reported to multiple states. In a June 2018 email an Arkansas bee keeper said dicamba had caused a 50% reduction in his honey production, and a July 2018 email from a Kansas Department of Agriculture supervisor told the EPA the department had been “overrun with dicamba complaints”.

Monsanto, which was bought by Bayer AG in 2018, said the claims raised by the farm coalition and other petitioners are “baseless” and the company “stands fully behind” its product.

“We believe the extensive body of science supporting the Environmental Protection Agency (EPA)’s registration decision will ultimately determine the outcome,” said Bayer spokesman Chris Loder. Monsanto has filed as an intervenor in the case.

For its part, BASF said dicamba herbicides are “critically important tools for growers” and said the company is providing training to dicamba applicators and is working with academics and state and federal agencies to address concerns.

Corteva declined to comment.

Despite the outcry over dicamba damage, in November 2018 the EPA granted a two-year extension for the dicamba herbicides for use over the dicamba-tolerant cotton and soybeans. That registration expires on 20 December and the agency is currently considering whether or not to further extend approval.

In the meantime, the EPA said it was working with states and with the companies selling the dicamba herbicides to “better understand the issue” to enable it to deal with “the problem of illegal drift”.

The EPA also insists that it is not certain what is causing the crop damage.

“The underlying causes of the various damage incidents are not yet clear, as ongoing investigations have yet to be concluded,” the agency told the Guardian.