Keeping an Eye on Dicamba’s Legal Issues

There are a handful of things in life one can control, and a few others that one can, at least, anticipate.

And then, there’s the ultimate fate of dicamba.

The broad-spectrum herbicide, which was first developed and registered in the late 1960s, has been the foundation of several marketed weed control measures and, more recently, genetically modified seed technologies.

Over the last five years, however, its use has become increasingly controversial. Originally, the U.S. EPA  approved dicamba only for pre-emergent use. In 2016, however, the agency approved use of newer, lower volatility formulations of dicamba for over-the-top crop use in cotton, soybeans and other crops.

A series of federal court rulings and reversals in 2020 – including an order from the U.S. Ninth Circuit Court of Appeals in June vacating registrations for three formulations of dicamba, followed by the EPA’s late-October decision to grant dicamba a five-year registration – have made planning 2021 crop budgets increasingly uncertain for growers. Various restrictions by state plant boards in Arkansas and elsewhere have also complicated the situation.

Brigit Rollins, staff attorney with the National Agricultural Law Center (part of the University of Arkansas System Division of Agriculture) said the pesticide’s prominent role in modern agriculture has made it an important one to decipher and explain from both an environmental and legal standpoint.

“From a legal perspective, it is an issue with a lot of parts,” Rollins said. “There have been numerous lawsuits filed both by farmers seeking compensation for crop damage they’ve experienced and by environmental organizations looking to vacate federal registration for dicamba products.

“The claims being brought in these cases range from state law tort claims like negligence to claims that the EPA violated federal statutes,” she said. “There are a lot of moving pieces to this issue, which can make it a tough one to untangle.”

In recent months, Rollins has worked to keep farmers, consultants and other members of the agricultural community up-to-date with ongoing changes through a series of blog posts under the title “The Deal With Dicamba.”

“It is very likely that the new dicamba registration will be challenged in court,” Rollins wrote of EPA’s Oct. 27 decision. “The Center for Food Safety, which has filed lawsuits against previous dicamba registrations, has stated that it expects to challenge the most recent registration. It is uncertain how such a lawsuit will play out. But farmers, agricultural retailers and other stakeholders who use or sell dicamba should be aware that such a challenge is likely to occur.”

Dicamba is one of many issues the National Agricultural Law Center tracks and was among the topics discussed in a recent webinar, “Top 10 of 2020: Legal Issues Affecting Agriculture.”

“I hope that my posts are able to help make a complicated issue more approachable and understandable,” she said. “One of the goals of those posts is to try to break the issue down into bite-size pieces and walk step-by-step through the various legal claims and developments that have occurred, while staying timely and up-to-date.”

Rollins said that the issue of dicamba is likely far from decided.

“The dicamba issue is on-going, and it may be a while before anything is settled,” she said.