Will Bayer Get the Drift on Dicamba?

The agrochemical company has been ordered to pay hundreds of millions of dollars in lawsuits alleging its potent herbicide drifts and damages crops.

Dave Dickey Midwest Center for Investigative Reporting August 27, 2020

Photo courtesy of the Midwest Center for Investigative Reporting

Any day now Bay­er AG will prob­a­bly be trum­pet­ing its newest, shiny, fan-dan­gled for­mu­la­tion of Xtendi­Max dicam­ba her­bi­cide (with Vapor­Grip tech­nol­o­gy?) for the 2021 grow­ing sea­son. Bay­er will say things like We are proud of our role in bring­ing inno­va­tions like Xtendi­Max to give grow­ers the tools they need to safe­ly, suc­cess­ful­ly, and sus­tain­ably pro­tect their crops from weeds (cross our hearts and hope to die).”

But any­one pay­ing atten­tion has learned that Bayer’s record on dicam­ba, a her­bi­cide used to kill weeds, has been less than stel­lar, if not down­right ugly.

After the U.S. Court of Appeals for the Ninth Cir­cuit issued an order vacat­ing EPA’s 2018 reg­is­tra­tion of over-the-top dicam­ba prod­ucts for soy­beans and cot­ton, Bay­er has tried to short-cir­cuit poten­tial law­suits from pro­duc­ers suf­fer­ing crop dam­age. In June Bay­er announced a $300 mil­lion dicam­ba set­tle­ment to pay cot­ton and soy­bean farm­ers who could prove yield loss­es due to dicam­ba from 2015 through this grow­ing sea­son. Bay­er also tossed anoth­er $100 mil­lion in to set­tle oth­er dicam­ba dam­age claims.

Cer­tain­ly Bay­er doesn’t want to be put through the dicam­ba wringer if it can help it. Bay­er is cur­rent­ly appeal­ing afed­er­al jury ver­dict in Cape Girardeau, Mis­souri that award­ed peach-grow­ing Bad­er Farms a stag­ger­ing $265 mil­lion pay­out in dam­ages and penal­ties for dicam­ba drift.

Okay. There’s going to be lots of ques­tions from farm­ers and con­cerned envi­ron­men­tal groups sur­round­ing Bayer’s new dicam­ba formulation.

As the courts have revealed Mon­san­to — which Bay­er pur­chased — real­ly did­n’t offer up much inde­pen­dent sci­en­tif­ic study to EPA to prove its claim that its dicam­ba for­mu­la­tion didn’t drift from where it was sprayed. The Ninth Cir­cuit Court of Appeals wrote:

The EPA made mul­ti­ple errors in grant­i­ng the con­di­tion­al reg­is­tra­tions…. The EPA sub­stan­tial­ly under­stat­ed the risks it acknowl­edged, and it entire­ly failed to acknowl­edge oth­er risks. We con­clude that the fun­da­men­tal flaws’ in the EPA’s analy­sis are so sub­stan­tial that it is exceed­ing­ly unlike­ly that the same rule would be adopt­ed on remand.’ ”

It was only after EPA approved Monsanto’s orig­i­nal 2016 request for reg­is­tra­tion that a university’s inde­pen­dent study as well as actu­al usage revealed the truth: Dicam­ba did not work as Mon­san­to promised.

When Bay­er pur­chased Mon­san­to in 2016, lit­tle did the com­pa­ny know about the lit­i­ga­tion hot mess that was wait­ing. And now it’s Bay­er that has to show EPA it can deliv­er a dicam­ba for­mu­la­tion that will not drift or min­i­mal­ly drift. And every­one will be watch­ing how the process plays out. Closely.

You see, Mon­san­to was prob­a­bly play­ing the long game when it came to its dicam­ba roll out. Recall that Mon­san­to sold dicam­ba-resis­tant seeds in the 2016 grow­ing sea­son with­out its accom­pa­ny­ing dicam­ba for­mu­la­tion. It was in the 2017 grow­ing sea­son that Mon­san­to intro­duced Xtendi­Max dicam­ba her­bi­cide. Why is that? Because Mon­san­to knew Xtendi­Max drift­ed, but if the com­pa­ny could reach crit­i­cal mar­ket share, dicam­ba drift would not mat­ter very much for row crops.

For this grow­ing sea­son, Bay­er esti­mat­ed Xtend soy­bean plant­i­ngs at 50 mil­lion acres — about 66% of 2019 plant­i­ngs. And there’s the prob­lem: Bay­er had sim­i­lar dicam­ba seed plant­i­ngs in 2019. It’s flat lined. And nip­ping at its heels is Corte­va, which this grow­ing sea­son offered its own her­bi­cide resis­tant soy­bean seed and accom­pa­ny­ing weed killer. Corte­va esti­mates that its Enlist E3 seed will account for about 20% of the U.S. mar­ket. Farm­ers are flock­ing to Corte­va because they don’t want the has­sles of deal­ing with Bayer’s Xtendi­Max and the com­pli­cat­ed, almost impos­si­ble to fol­low spray­ing require­ments laid out by the EPA.

Bay­er says new for­mu­la­tions of dicam­ba are now at EPA and the com­pa­ny expects to make announce­ments this fall. But giv­en Monsanto’s shenani­gans it could very well be that the EPA’s reg­is­tra­tion process will not be open and above board.

The recent EPA reg­is­tra­tion approval of BAS­F’s her­bi­cide isox­aflu­tole for soy­beans pro­vides a cau­tion­ary tale. That’s because EPA com­plete­ly bypassed the nor­mal process of request­ing pub­lic com­ment for isox­aflu­tole in the Fed­er­al Reg­is­ter. The only peo­ple that knew of EPA’s 30 day pub­lic com­ment peri­od in Jan­u­ary were folks want­i­ng to get the reg­is­tra­tion approved — all 54 comments.

And then to add insult to the injury, EPA’s assis­tant admin­is­tra­tor for the chem­i­cal safe­ty divi­sion, Alexan­dra Dapoli­to Dunn, announced that we lis­tened and believe this action bal­ances the need to pro­vide grow­ers with the prod­ucts nec­es­sary to con­tin­ue to pro­vide Amer­i­cans with a safe and abun­dant food sup­ply while ensur­ing our country’s endan­gered species are pro­tect­ed.” So much for transparency.

Fur­ther com­pli­cat­ing Bay­er’s dicam­ba woes is grow­ing sus­pi­cion from weed sci­en­tists that weeds are devel­op­ing resis­tance to the herbicide.

Bay­er had planned to build a $1 bil­lion (yeah, bbbb­bil­l­lion) dicam­ba plant in Lul­ing, Louisiana. Those plans have been scrapped due to what Bay­er says are cash-flow prob­lems (all this lit­i­ga­tion is expen­sive), and has noth­ing to do with the com­pa­ny’s con­fi­dence of deliv­er­ing a dicam­ba for­mu­la­tion that does­n’t drift. Your mileage may vary on that par­tic­u­lar statement.

At this point I expect there’s lit­tle con­fi­dence from any­one pay­ing atten­tion — farm­ers, sci­en­tists, envi­ron­men­tal groups — that Bay­er will fix its dicam­ba prob­lems next grow­ing sea­son. Bay­er and the out-to-lunch EPA enablers will cer­tain­ly reg­is­ter some dicam­ba for­mu­la­tion for 2021. But Monsanto/​Bayer mis­steps have destroyed much of the public’s trust. Only a com­plete­ly trans­par­ent, open reg­is­tra­tion process with inde­pen­dent research is now acceptable.

Edi­tor’s Note: 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 www​.inves​ti​gatemid​west​.org

Dave Dick­ey spent near­ly 30 years at Uni­ver­si­ty of Illi­nois at Urbana-Champaign’s NPR mem­ber sta­tion WILL-AM 580 where he won a dozen Asso­ci­at­ed Press awards for his report­ing. For 13 years, he direct­ed Illi­nois Pub­lic Media’s agri­cul­ture pro­gram­ming. His week­ly col­umn for the Mid­west Cen­ter cov­ers agri­cul­ture and relat­ed issues includ­ing pol­i­tics, gov­ern­ment, envi­ron­ment and labor.

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