Dicamba on Trial: Peach Farmer’s Case Against Bayer, BASF Set to Begin Monday

Johnathan Hettinger January 27, 2020

This photo shows soybeans with suspected dicamba damage north of Flatville, Illinois, on Aug. 21.

Edi­tor’s Note: This sto­ry was orig­i­nal­ly pub­lished on the Mid­west Cen­ter for Inves­tiga­tive Report­ing and is repub­lished here under a Cre­ative Com­mons license. Reporter Johnathan Het­tinger is cov­er­ing the dicam­ba tri­al for the Mid­west Cen­ter and will be post­ing peri­od­ic dis­patch­es, which Rur­al Amer­i­ca In These Times will repub­lish as they become available.

After five years of report­ed crop dam­age by the weed killer dicam­ba, Ger­man agribusi­ness com­pa­nies Bay­er and BASF will head to tri­al this week to defend them­selves against charges that they inten­tion­al­ly caused the prob­lem in order to increase their profits.

The law­suit, orig­i­nal­ly filed in Novem­ber 2016 by a south­east­ern Mis­souri peach farmer, alleges that Mon­san­to, which was acquired by Bay­er in 2018, and BASF cre­at­ed the cir­cum­stances that have dam­aged mil­lions of acres of crops. Read the full com­plaint here.

The tri­al is set to begin Mon­day in the Unit­ed States Dis­trict Court for the East­ern Dis­trict of Mis­souri in Cape Girardeau. 

Through their part­ner­ship, joint ven­tures, shared tech­nolo­gies, and mutu­al greed, Defen­dants have con­spired to cre­ate and encour­age an eco­log­i­cal dis­as­ter in Mis­souri and oth­er states to increase the prof­its and demand for their dicam­ba prod­ucts,” the law­suit states.

Bay­er and BASF deny the allegations. 

For years, the com­pa­nies have blamed the dam­age on oth­er fac­tors, includ­ing oth­er her­bi­cides, appli­ca­tor mis­use and weath­er events. 

BASF con­tin­ues to sup­port the use of Enge­nia her­bi­cide for grow­ers bat­tling resis­tant weeds and is com­mit­ted to ensur­ing that its prod­ucts meet all reg­u­la­to­ry stan­dards, includ­ing rig­or­ous safe­ty and envi­ron­men­tal test­ing. We look for­ward to defend­ing our prod­uct in this case,” said Odessa Hines, a spokes­woman for BASF. Read BAS­F’s response to the com­plaint here.

A Bay­er spokesman said there is no mer­it to the plaintiff’s claims.”

This law­suit attempts to shift respon­si­bil­i­ty to Mon­san­to and BASF and away from what is real­ly caus­ing Bad­er Farm’s alleged dam­ages. As mul­ti­ple experts have con­firmed and as Bad­er Farms admits, its peach orchards are suf­fer­ing from a per­va­sive soil fun­gus that kills peach trees,” said Kyel Richard, a spokesman for Bay­er, in an emailed statement.

This soil fun­gus is respon­si­ble for destroy­ing much of Missouri’s his­toric com­mer­cial peach pro­duc­tion and it has unfor­tu­nate­ly arrived on Bad­er Farms. Mon­san­to and its prod­ucts are not respon­si­ble for the loss­es sought in this law­suit; rather, those loss­es are due to this unre­lat­ed fun­gus and oth­er nat­ur­al caus­es.” Read Bay­er’s response to the com­plaint here or see their full state­ment below.

The law­suit was filed by Bill Bad­er, the largest peach farmer in Mis­souri, whose crops have alleged­ly been dam­aged by dicam­ba drift each year since 2015. The law­suit is among a class-action suit and the first of many filed by farm­ers over alleged dicam­ba damage. 

The alle­ga­tions revolve around dicam­ba, a volatile weed killer orig­i­nal­ly devel­oped in the 1960s that gained more pop­u­lar­i­ty in recent years after Mon­san­to devel­oped genet­i­cal­ly engi­neered soy­bean and cot­ton seeds that could with­stand being sprayed by the herbicide. 

Mon­san­to devel­oped the dicam­ba-resis­tant seeds after many weeds start­ed devel­op­ing resis­tance to glyphosate – the active ingre­di­ent in Roundup, the most wide­ly used her­bi­cide in the world. Dicam­ba kills plants by caus­ing them to grow too quick­ly, which caus­es them to whith­er and die.

Mon­san­to released the cot­ton seeds in time for the 2015 grow­ing sea­son and released the soy­bean seeds for the 2016 grow­ing sea­son. How­ev­er, the accom­pa­ny­ing her­bi­cide, ver­sions of which were cre­at­ed by both Mon­san­to and BASF and tout­ed to be less like­ly to drift, was not approved by the U.S. Envi­ron­men­tal Pro­tec­tion Agency until the 2017 grow­ing season. 

Many crops, includ­ing non-resis­tant soy­beans and spe­cial­i­ty crops, are extreme­ly sen­si­tive to dicam­ba and can be dam­aged by small amounts in the air.

Pri­or to the resis­tant seeds, dicam­ba had not been wide­ly sprayed dur­ing grow­ing sea­son because of its propen­si­ty to drift. Instead, it was large­ly used as a burn­down” weed killer to con­trol weeds before plant­i­ng and after harvest.

Dur­ing those two years where the seeds were plant­ed and the her­bi­cide was not approved, many farm­ers ille­gal­ly sprayed old­er ver­sions of dicam­ba, which were not approved for use on the crops and were like­ly to drift. This ille­gal spray­ing harmed Bader’s crops, the suit alleges. The law­suit also alleges Mon­san­to and BASF knew this would hap­pen because it would like­ly lead to future sales because farm­ers would engage in defen­sive” plant­i­ng to pro­tect their crops from drift.

Even after their new ver­sions of dicam­ba were approved, the dam­age con­tin­ued. In 2017, an esti­mat­ed 3.1 mil­lion acres of soy­beans were dam­aged by dicam­ba, accord­ing to an analy­sis by Uni­ver­si­ty of Mis­souri crop sci­ence pro­fes­sor Kevin Bradley. 

The pes­ti­cide drift also had oth­er effects, such as dam­ag­ing sen­si­tive crops like Bader’s peach farm, said Bev Ran­dles, an attor­ney for Bad­er Farms. Ran­dles said Mon­san­to and BASF are respon­si­ble for releas­ing her­bi­cides that they knew were volatile.

There is no such thing as a dicam­ba-tol­er­ant peach tree,” Ran­dles said. 

The cumu­la­tive drift from years of spray­ing caused crip­pling dam­age thou­sands of Bader’s trees and led his peach farm to no longer be a sus­tain­able oper­a­tion, the law­suit alleges. The over­all lost future rev­enue is esti­mat­ed at more than $55 million.

Every acre of Plain­tiffs’ orchards, fields, and crops has suf­fered dicam­ba dam­age, result­ing in sub­stan­tial yield loss­es and lost prof­its,” the law­suit alleges.

Each year, more acres were plant­ed with dicam­ba-resis­tant soy­beans, and the law­suit alleges some of this was defen­sive” plant­i­ng to help pro­tect crops from being dam­aged by drift­ing dicam­ba. The num­ber of dicam­ba-resis­tant soy­beans plant­ed in the U.S. increased from about 20 mil­lion acres in 2017 to 40 mil­lion acres in 2018 to 60 mil­lion acres in 2019, accord­ing to Bayer. 

In response to sus­pect­ed dam­age nation­wide, the U.S. Envi­ron­men­tal Pro­tec­tion Agency has increased the restric­tions on the dicamba’s usage each of the past two years, and many states have imposed addi­tion­al restric­tions, includ­ing requir­ing increased train­ing and imple­ment­ing cut-off dates after which the chem­i­cal can­not be sprayed.

Even with those restric­tions, crop dam­age increased, accord­ing to state pes­ti­cide com­plaint num­bers. In 2019, Illi­nois, the largest soy­bean pro­duc­ing state, more than 700 pes­ti­cide mis­use com­plaints were filed, com­pared to few­er than 130 in 2016

On Jan. 25, Bay­er pro­vid­ed the state­ment below to the Mid­west Cen­ter for Inves­tiga­tive Reporting.

This law­suit attempts to shift respon­si­bil­i­ty to Mon­san­to and BASF and away from what is real­ly caus­ing Bad­er Farm’s alleged dam­ages. As mul­ti­ple experts have con­firmed and as Bad­er Farms admits, its peach orchards are suf­fer­ing from a per­va­sive soil fun­gus that kills peach trees. This soil fun­gus is respon­si­ble for destroy­ing much of Missouri’s his­toric com­mer­cial peach pro­duc­tion and it has unfor­tu­nate­ly arrived on Bad­er Farms. Mon­san­to and its prod­ucts are not respon­si­ble for the loss­es sought in this law­suit; rather, those loss­es are due to this unre­lat­ed fun­gus and oth­er nat­ur­al causes.

In 2015 and 2016, Monsanto’s Xtend­Flex cot­ton and Xtend soy­beans, respec­tive­ly, were approved for sale by the Unit­ed State Depart­ment of Agri­cul­ture. Its Xtendi­Max her­bi­cide was exten­sive­ly test­ed and approved by the EPA for use with Xtend crops start­ing in 2017. Monsanto’s Xtend seed and low volatil­i­ty Xtendi­Max her­bi­cide rep­re­sent break-through tech­no­log­i­cal advances that were sore­ly need­ed by grow­ers to pro­duce high-yield­ing crops and to com­bat tough-to-con­trol weeds. Upon EPA approval of the Xtendi­max her­bi­cide, Mon­san­to trained more than 50,000 grow­ers, appli­ca­tors, licensees and oth­ers on prop­er label application. 

Mon­san­to also took many steps to warn grow­ers, deal­ers and appli­ca­tors that dicam­ba her­bi­cides were not approved for in-crop use dur­ing the 2015 and 2016 sea­sons, and that such use would vio­late state and fed­er­al laws and was not autho­rized by Mon­san­to. Mon­san­to includ­ed a promi­nent warn­ing with all bags of Xtend seed sold and pro­vid­ed exten­sive train­ing with all our teams that the use of a dicam­ba her­bi­cide over Xtend cot­ton and soy­bean seeds was not per­mit­ted and would be ille­gal. — Kyel Richard, senior exter­nal com­mu­ni­ca­tions man­ag­er, Bay­er U.S. – Crop Science.

The Mid­west Cen­ter for Inves­tiga­tive Report­ing is a non­prof­it, online news­room offer­ing inves­tiga­tive and enter­prise cov­er­age of agribusi­ness, Big Ag and relat­ed issues through data analy­sis, visu­al­iza­tions, in-depth reports and inter­ac­tive web tools. Vis­it us online at http://​www​.inves​ti​gatemid​west​.org.

Johnathan Het­tinger is a jour­nal­ist based in Liv­ingston, Mon­tana. Orig­i­nal­ly from Cen­tral Illi­nois and a grad­u­ate of the Uni­ver­si­ty of Illi­nois, he has worked at the Mid­west Cen­ter for Inves­tiga­tive Report­ing, the Liv­ingston Enter­prise and the (Cham­paign-Urbana) News-Gazette. Con­tact Johnathan at jhett93@​gmail.​com and fol­low him on Twit­ter @jhett93.
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