2020 has seen its share of agriculture-related regulations and lawsuits, but one of the ongoing cases to affect many farmers throughout the U.S. is the regulations on the commonly used dicamba pesticides.

During a National Agricultural Law Center webinar, Brigit Rollins and Harrison Pittman discussed the top 10 legal issues affecting agriculture this year.

Rollins, staff attorney at the National Agricultural Law Center, broke down the lawsuits and regulations that have impacted dicamba users in 2020 as well as the new dicamba regulations for the 2021-2025 growing years.

Bader Farms case

Dicamba has been one of the bigger topics over this year, which has gotten a lot of attention in media.

"Dicamba kicked the year off with a bit of a bang when, in February, a jury ruled in favor of Bader Farms in their case against Monsanto," Rollins said.

Bader Farms is a peach farm in Missouri, which claimed in 2015 that they had noticed significant amounts of damage to their crops as a result of dicamba spraying.

"Bader Farms brought a case against Monsanto, which is the manufacturer of dicamba," she said. "As a side note, Monsanto, since the case began, has been purchased by Bayer. However, Monsanto is still the named defendant in that case, but Bayer is now the one fighting in this case even though the case was initially brought against Monsanto."

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The Bader Farms case was decided in February when the jury awarded Bader Farms $15 million in actual damages.

"Besides the $15 million in actual damages, the jury then went on to award $250 million in punitive damages," Rollins said. "They believe that Monsanto's actions necessitated an additional $250 million in what can be thought of as punishment damages. The jury found in favor of Bader Farms on all claims, which included negligent design and failure to warn, civil conspiracy, and joint venture."

To learn more about this case, check out the National Agricultural Law Center's "Deal with Dicamba" series at https://bit.ly/deal-with-dicamba.

The court's June decision

The next big dicamba development happened in June when the Ninth Circuit Court of Appeals vacated the dicamba registration in the middle of the growing season.

"The registration being yanked away during the growing season left a lot of questions for farmers who were still applying dicamba-based pesticides," Rollins said.

The dicamba pesticides were no longer registered under FIFRA after the June ruling. This left the EPA with the task of figuring out how to allow farmers who were relying on the use of these pesticides to be able to legally spray through the end of the growing season.

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"This was the plaintiff's second attempt to vacate the registration for some of these dicamba pesticides," she said. "They had initially brought their case after the pesticides were registered in 2016, but because that was a two-year registration and the court system can only move so quickly, the 2016 registration that the plaintiffs were challenging was no longer valid. The pesticides had been re-registered with a new registration in 2018."

 The plaintiff's first attempt was dismissed, but they could refile on an expedited schedule, which allowed them to get into court this summer and make their case arguing that the 2018 registration should be vacated.

"The plaintiffs brought their case under both FIFRA (Federal Insecticide Fungicide Rodenticide Act) as well as ESA (Endangered Species Act)," Rollins said. "The court concluded that the registration was invalid under FIFRA, and it didn't address the ESA claims because it agreed with the plaintiffs that the registration was invalid and could be vacated purely under the FIFRA claims.

"The decision prompted the EPA to release guidance on dicamba application with a cutoff date of July 31 to use those pesticides in production."

New regulations for 2021-2025

In October of 2020, the EPA decided to register three dicamba pesticides for an additional five years, the 2021-2025 growing season.

"This was a big announcement, and we're interested to see what the impact will be," Rollins said. "The new registration does make some changes to the labels. The new additions to the labels for these three dicamba pesticides include a national application cutoff date, which is June 30 is for soybeans and July 30 for cotton."

There is also a series of new buffer requirements.

"There's going to be a downwind buffer of 240 feet and a 310 feet buffer in areas where ESA listed species are located," she said. "In addition, there's a new requirement for a pH buffering agent to be tank-mixed with dicamba products to help control volatility.

"The trend we are seeing here is a lot of these decisions end up getting litigated. The American Soybean Association has filed a lawsuit, challenging the cutoff dates and the buffer requirements in this new label."

The American Soybean Association is challenging the cutoff dates because planting dates differ throughout the U.S., causing some growers to not be able to apply their pesticides when needed.

"Since Dicamba is applied in various states and different climates, the June 30 cutoff date for soybeans and July 30 for cotton might work in some states where the application for dicamba would be done by that time anyway," Rollins said. "However, that's not going to work in other areas where the growing season starts a little bit later and the need for pesticides to be applied is past the cutoff dates.

"The American Soybean Association is also arguing that the buffer requirements will limit the amount of area to plant dicamba-resistant soybeans and cotton. This is an ongoing case and definitely one to watch."