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

Johnathan Hettinger

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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