Just as it was looking like American agriculture was going to survive the pandemic and planting was turning out successful, rural areas learned they were losing the weedkiller dicamba to protect the soybeans they’ve put the ground.

Xtendimax, FeXapan, and Engenia the three dicamba herbicide brands or “labels” sold by Bayer, Corteva, and BASF, are no longer legal for use by farmers, according to the June 3 federal court ruling.

Dicamba is a broad-spectrum herbicide first registered in 1967.  It is widely used in grain crops and grasslands and was long considered safe if used properly under label instruction.  

The ruling by the U.S. Court of Appeals for the Ninth Circuit reportedly vacated the federal registrations of the three dicamba herbicide brands effective immediately.   Issues of “drift damage”  to nearby organic fields and whether it is “safe enough” landed dicamba in courts about four years ago. 

The Lone Star State reacted by the next day with this statement by Texas Agriculture Commissioner Sid Miller: “For the farmers in Texas, I want to be clear: I’ve got your back. Dicamba is still available for use in Texas as currently labeled and will continue to be so until someone tells us to stop. In this difficult time, the last thing Texas farmers need is more uncertainty.

“The Ninth Circuit ruling on dicamba is already spurring very significant confusion and chaos among soybean and cotton growers and applicators here in Texas, who were intending to apply the herbicide today, tomorrow and over the coming weeks.”

Miller said the U.S. Environmental Protection Agency (EPA): can and should “provide clarity as soon as possible by announcing that it plans to take further administrative action, and then doing so.”  

Miller said EPA must issue an existing stocks order to provide appropriate guidance to farmers and applicators and request a Section 18 Emergency Use for these products for Texas farmers.

By yesterday (June 8), the impacted farm states with the possible exception of South Dakota have joined with Texas in backing up their farmers, during this “spraying season.”

Nebraska Agriculture Director Steve Wellman anticipates the EPA will seek a review of the problematic ruling, perhaps as an emergency.

“The Nebraska Department of Agriculture has not issued a stop-sale order and will enforce the sales and applications of these products as they are currently registered in Nebraska,” said Wellman.

The EPA should immediately appeal the ruling, according to a disappointed National Corn Growers Association (NCGA).

“This decision to remove a weed control option, especially in the middle of the season, adds yet another challenge to an already difficult time and sets a concerning precedent,” NCGA said.

And the Nebraska Farm Bureau has asked the state’s attorney general to explore legal options that could help the state’s growers. Pesticide use and application programs require the states to name a lead agency.  

The lead state agency is then responsible for licensing and training pesticide applicators, overseeing worker protection, registering pesticides for sale in the state and working to minimize unnecessary impacts to agriculture while enhancing the protection of endangered and threatened species

As an example, the Texas Department of Agriculture is the lead agency for the Lone Star State with more information available at visit the TDA Pesticides. 

“The timing of this ruling couldn’t be worse,” said Nebraska Farm Bureau President Steve Nelson. “Dicamba products are stringently regulated and agricultural producers have a limited window to use these products. We are in that window of use time right now, but that window is rapidly closing.

“The timing of the court’s decision has needlessly created tremendous uncertainty for farmers. Worse yet, many farmers made planting decisions and herbicide purchases based on their understanding these dicamba products would be available for their weed control programs.”

Secretary of Agriculture Sonny Perdue called on the EPA to “use any available flexibilities to allow the continued use of already purchased dicamba products, which are a critical tool for American farmers to combat weeds resistant to many other herbicides, in fields that are already planted.”

He said the Ninth Circut ruling was taking away one of the tools farmers need to produce the world’s food, fuel, and fiber after they’ve purchased the herbicide they need to combat weeds in the fields they’ve already planted.

After Minnesota joined Texas and the other state at about 2 p.m. Monday, it appears that South Dakota is the only significantly impacted state to submit to the appellate court’s decision.   

According to the Mount Rushmore State’s officials, the “sale and use of those impacted products must be discontinued immediately.”

Environmental groups are celebrating the ruling as a victory. 

“Today’s decision is a massive win for farmers and the environment,” said attorney George Kimbrell of the Center for Food Safety (CFS), “It is good to be reminded that corporations like Monsanto and the Trump Administration cannot escape the rule of law, particularly at a time of crisis like this. Their day of reckoning has arrived.”

Kimbrell was lead counsel for the environmentalists. He said the Ninth Circuit ruled that the new over-the-top use registrations of dicamba formulations XtendiMax, FeXapan, and Engenia are null and void, effective immediately.  

“The ruling was crystal clear: These pesticides can no longer be legally sold or sprayed on dicamba-resistant soybeans or cotton, he said.

“State officials have called on the EPA for clarification of the court’s ruling, some maintaining their states will allow continued use of dicamba unless or until directed otherwise. But the EPA has ignored their calls, just as it ignored the growers harmed by dicamba.”

In his statement on Monday, Kimbrell also said the EPA should “confirm to the states that these uses are illegal. EPA’s failure to do so to this point is a dereliction of the agency’s duty to farmers and the public. We represent farmers, including many who have suffered years of drift damage from these harmful dicamba products. They must not be subjected to the fourth year of rampant injury to their crops from dicamba drift.”

“And the (drift) damages are more than economic,” he says the issue is  “tearing the fabric of farming communities.” Kimbrell makes several other points:

The pesticide companies have already deceived farmers twice. They pressured the EPA for approval and then sold their dicamba products for four years in the face of substantial evidence that they would cause disastrous offsite drift damage.

Worse, when unprecedented and disastrous drift injury did occur, these companies blamed their farmer customers rather than their harmful products. 

If Bayer/Monsanto, Corteva, and BASF want to help their customers, they should reimburse them for their unusable dicamba products, facilitate safe disposal, and make their farmer-customers whole.