Will Bayer Get the Drift on Dicamba?

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

“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.”

In these times | Dave Dickey | August 27, 2020

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