Federal Ruling Against Common Herbicides Leaves Farmers Confused
This segment is part of The State of Science, a series featuring science stories from public radio stations across the United States. This story by Christina Stella originally appeared on Harvest Public Media.
A federal court in California recently vacated the three popular dicamba herbicides—Xtendimax, Fexipan, and Engenia—after the court determined the EPA violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) by registering the chemicals for use. Environmental advocates rejoiced, while farm groups lamented the decision as yet another hurdle for farmers to overcome during a difficult year.
More herbicides could face legal challenges in the coming years. But they were once part of a golden era of U.S. agriculture, and a key player in the rise of modern industrialized growing systems.
In the decades following World War II, pesticide and herbicide development flourished. Dozens of chemicals hit the market, promising farmers more control over their crops, bigger yields, and more profit.
These days, farmers often plan their growing seasons around what herbicide system they’ll use. For Tracy Zipp, who grows soybeans, corn, sorghum, and wheat in southwestern Nebraska, the ruling’s arrival in the middle of the growing season couldn’t have been worse.
“It’s just very frustrating,” she explained. Zipp spent around two years testing the dicamba seed system meant to accompany the herbicides before fully investing for this season.
“We’ve made our budgets, we’ve bought our chemical…we’ve got weeds that are resistant to anything else, and now they tell us we can’t use it.”
At first, it wasn’t clear to Zipp if the ruling was an immediate ban on the chemicals as local agriculture departments struggled to determine next steps. She received several emails from organizations in Kansas, Colorado, and Nebraska with conflicting guidance.
While states like South Dakota and Illinois moved to immediately pull the herbicides’ registrations for use, others like Iowa, Kansas, and Nebraska acted more conservatively. Several said the chemicals were still registered locally until the end of the year and allowed farmers to continue spraying them until the EPA officially weighed in on the decision.
“Honestly, when you get the USDA, the EPA, and then lawyers and stuff involved, you know, you’re in for a long, confusing, changing situation,” she opined. The EPA eventually clarified producers could use what they’d already purchased through the end of July but barred new sales.
Zipp says the flexibility helped her dodge a potential disaster. Without dicamba, she would have had to pull thousands of acres of weeds by hand.
“You can’t let them grow in your field,” she explained. For example, many species in the pigweed family, a common haunt on farms across the region, can produce hundreds of thousands of seeds per crop that remain viable for years.
“So you have to walk in, chop them, carry them back out of the field, and burn them.”
“We’ve been spoiled in that the industry has for the past 70 years introduced new herbicides when the older herbicides faltered.”
In the recent dicamba case, plaintiffs argued the EPA didn’t address various risks the chemicals’ posed to the environment when approving them for use.
The court agreed, adding the agency also failed to accurately determine the scope of dicamba drift damages nationwide.
But to the surprise of Brigit Rollins at the National Agricultural Law Center, judges also took social and economic risks into account. “They said for the economic reasons that Monsanto had created a near monopoly of dicamba-resistant traits,” Rollins said.
Judges also wrote the EPA “failed to acknowledge the risk that OTT dicamba use would tear the social fabric of farming communities,” citing reports that dicamba damages have fueled intense frictions in farming communities across the country. In one high profile case, a farmer shot and killed his neighbor after dicamba drift ruined his crop.
Rollins says these opinions could show up in another case being considered in the Federal 9th Circuit Court in California against Enlist Duo, which many farmers use on their corn and soybeans.
“Even though these are different judges and a different panel, we could see them pulling from this now, particularly if the plaintiff or any of the parties bring this case up and try to use it as precedent before the court,” she said.
A decision on the Enlist Duo case is anticipated over the next few months.
The ruling doesn’t affect all herbicides with dicamba, but it could eventually lead to more restrictions and hasten concerns around herbicide resistance. Bob Hartzler, a weed specialist at Iowa State University, says more bans could increase the urgency of finding ways to manage weeds without completely relying on chemicals.
“We’ve been spoiled in that the industry has for the past 70 years introduced new herbicides when the older herbicides faltered,” Hartzler said.
Over the past few decades, hundreds of weed species worldwide have developed immunity to the chemicals, and in turn, farmers’ herbicide choices have dwindled.
“There have been no new classes of herbicides, and so we’re fairly rapidly knocking out most of those herbicides with herbicide resistance, so we’re running out of options.”
“It’s just like the struggle with antibiotics…they’re not easy to come up with.”
But Hartzler says in Australia, herbicide resistance has forced farmers to try new strategies, like weed seed harvesting. Producers can modify their combines to collect or destroy the seeds.
“That tactic is only effective when used in combination with herbicides, so it’s not going to dramatically reduce the use of herbicides,” he said. “Basically, what it does is reduce the rate that the weeds adapt to the herbicide.”
“It’s just like the struggle with antibiotics…they’re not easy to come up with.”
Hartzler expects the changes will be a hard sell statewide, where producers can still comfortably rely on chemical tools solely to manage their weeds.
“Farmers are not going to like it because it costs money, there’s potential it will slow down harvest. But pretty soon I think we’re going to be in a position where we don’t have an alternative to that.”
While farmers like Tracy Zipp got some reprieve this year, soon they’ll have to bet on their herbicides for next year. Her hopes are humble—that no matter where the cards fall, she won’t be blindsided again.
“You can think about it, but if you focus on it, you’ll go crazy,” she joked. “It’s like, seriously, if you guys want to jerk this around, wait until October, November…then, at least, we’ve got three or four months to try and make a decision.”
Christina Stella is a reporter for NET and Harvest Public Media in Lincoln, Nebraska.
IRA FLATOW: This is Science Friday. I’m Ira Flatow. A bit later in the hour, hundreds of thousands of COVID-19 patients have been hospitalized. We’ll talk about what some of the long-lasting impacts might be and what recovery might look like for them. But first, it’s time to check in on the state of science.
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IRA FLATOW: Local science stories of national significance. Last month, a federal judge ruled a popular group of herbicides can no longer be used by farmers. This is considered a win for environmentalists. These are strong chemicals and have the tendency to stray from where they’re sprayed.
But some farmers say this ruling is a slap in the face for them, and a bureaucratic nightmare has ensued since. Here with us to talk about this story is Christina Stella, Harvest Public Media Reporter for NET. That’s Nebraska’s public-media service. She’s based in Lincoln, Nebraska. Welcome back to Science Friday.
CHRISTINA STELLA: Thanks for having me, Ira.
IRA FLATOW: Let’s begin with what herbicides. What are the herbicides that are affected by this ruling?
CHRISTINA STELLA: The three chemicals that have been affected are Engenia, ExtendiMax, and FeXapan which are three popular dicamba herbicides.
IRA FLATOW: So walk us through what the big deal is about the dicamba herbicides.
CHRISTINA STELLA: Yeah. So dicamba is a is a very-common chemical found in herbicides, that a lot of farmers use on their fields to control their weeds. It’s actually been around for several decades, and was developed in what some experts call a golden age of agricultural innovation, in the post-war era. And so while dicamba played a key role in the rise of industrialized agriculture, there are also some concerns that the chemical can be harmful to native plants and grasses– and that its use contributes to weed resistance.
IRA FLATOW: Mm-hmm. And tell us what the ruling was and how it affects that.
CHRISTINA STELLA: So the judge made the decision for several different reasons. The ruling effectively removed the label-for-use off of those chemicals. And so the judge agreed with the plaintiffs that the registration of the chemicals violated certain federal environmental law, and also didn’t really acknowledge different risks that the dicamba products pose to the environment and farmers’ livelihoods.
IRA FLATOW: Monsanto plays a role here, too, doesn’t it?
CHRISTINA STELLA: So Monsanto developed one of those dicamba systems that was banned– the XtendiMax system– which something like 60% to 75% of soybean farmers have switched to over the past few years. So it’s a very widespread product.
Now, the issue with it is, dicamba usage has caused tensions in a lot of different farming communities across the country, because of something called dicamba drift.
Now, during spring season, farmers have to be really careful when they’re applying those chemicals. You have to have the right equipment to do the job safely. The wind speeds has to be right– the temperature– or else that product can drift over to your neighbor’s property. And it can wipe out their crops. And that’s a pretty devastating financial risk.
One of the farmers that I spoke to explained to me that sometimes, if there’s an accident, neighbors will try to work it out amongst themselves. But plenty of other times, farmers have a hard time putting in a complaint to the state and getting a restitution for that loss. So in one extreme case that comes to mind, a farmer shot and killed his neighbor over dicamba drift. So there’s been a lot of tension there.
And just a couple weeks ago, Bayer agreed to pay $400 million in dicamba-drift settlements, that they inherited from Monsanto when they purchased the company in 2018. So there is a history there, and a lot of people have been impacted by dicamba drift. And then to the monopoly point, because of that drift risk, a lot of farmers have felt pressured to purchase the Xtend package from Monsanto, which would you know have those dicamba-resistant seeds– so they eliminate potentially losing their crops, if their neighbor makes a mistake.
So in the eyes of the court, the EPA didn’t take those social and economic risks into perspective. They’re really tied-up in each other in a lot of ways, and they didn’t take that into account when approving the products for use.
IRA FLATOW: So was this ruling a surprise to people you talked to?
CHRISTINA STELLA: Oh yes. It caused quite a stir in the agricultural community. Plenty of people have been watching this case since the original lawsuit was filed in 2017. But what really surprised people was the timing. News of the decision broke in the midst of spring season. So a lot of farmers had already started using these products, or they were about to.
And that’s difficult. Because producers make their chemical and seed decisions a while in advance– I mean, a year in advance. So farmers like Tracy Zipp, who I spoke to for the story, it was really destabilizing not to know whether she’d be able to protect her crops– and potentially having to come-up with a plan B completely on the fly. I think that was a really stressful situation for a lot of people to work through.
We have a little recording from Tracy Zipp, who grows soybeans, corn, sorghum, and wheat in Nebraska. And this is what she said about the weeds.
– They produce like five-million seeds per plant. You can’t let them grow in your field. So you have to walk in, chop them, carry them back out of the field, and burn them.
IRA FLATOW: So it sounds like getting dicamba on her farm is a big deal for her.
CHRISTINA STELLA: Oh my gosh, yes. She relies on those kinds of chemical tools to control weeds on her farm. And that’s the norm in commercial agriculture. As I said, those annual planting and resource decisions, they happen months in advance– and they really revolve around the question of, OK, what seed system am I going to use? What are my neighbors using? And what chemicals complement them?
So if she truly had not been able to use those products this year that she had purchased– that she had spent thousands-and-thousands of dollars on, by the way– I can’t imagine how she would have gone about hiring people on such short notice to weed thousands-and-thousands of acres by hand, especially in the middle of a pandemic.
So I think that that’s definitely something we talked about, too, that this year in particular there was that added stressor there. And you know in a world where those herbicide options are already dwindling– because more-and-more weeds are becoming resistant to various chemicals– farmers are very anxious to make sure that they can use what works for as long as they can. So it’s definitely a big deal to them.
IRA FLATOW: And it sounds like a lot of the states didn’t know how to respond to this ruling, and there’s sort of a jumble of responses.
CHRISTINA STELLA: Yes. The decision, it confused a lot of state agriculture departments. Because the way it works, these products, they have a federal label-for-use, and then they also have a state label. So even though the ruling was effective immediately per the court, a lot of local departments said, OK, well, hold on now– these products are certified for use in our state through the end of the year. We’re going to honor that labeling. We’re going to continue to allow people to use them, until the EPA provides more guidance for us.
And the Agency did, after a few days, issue a cancel order for those products– meaning you can’t buy or sell them anymore. But– and farmers were happy about this– they were still allowed to use whatever they had already purchased through the end of July, which is when most people would be done spraying anyways. So that was kind of how they softened that decision for farmers.
IRA FLATOW: Do you get the sense that there is this tension– I mean, I get that sense– between farmers and agencies like the EPA?
CHRISTINA STELLA: Absolutely. Yeah. I mean, obviously, farmers are not a monolith. But I do think it’s fair to say that a lot of commodity farmers are sensitive to this kind of federal intervention. Because they see it as a financial risk for them, not to have those tools. There’s a lot of pressure on farmers to maximize their production– to increase that yield as much as possible– because commodity prices are so low. And they really have to produce as much as possible to sustain themselves financially.
And in this case, there was a perception among some that the courts and agencies like the EPA were almost playing around with their livelihoods by making the decision– particularly at the time that they did. And so I really get the impression that it was seen as inconsiderate, and kind of stemming from a misunderstanding of farmers’ time and schedules and the labor that goes into making these decisions.
IRA FLATOW: Could we see this reversal of what herbicides are approved for use? Could we see this extending to other herbicides that farmers might be using?
CHRISTINA STELLA: Absolutely. It’s certainly possible this ruling could play into the court’s decision in future cases, because it could be used as precedent. But interestingly, Bayer, Corteva, and BASF, which produced the three dicamba herbicides that were just banned, they actually have appealed that ruling. So the dicamba saga is not fully over yet. But this very well could create a window for future similar cases.
IRA FLATOW: And I guess if farmers feel that they look down the road and they see there might be similar cases, and it really has upset their farming system of using chemicals, maybe they’re finding non-chemical ways of dealing with the weeds.
CHRISTINA STELLA: Yeah. I think that right now in the United States. farmers in the United States are still very much operating under the system of, OK, what chemical system am I going to use? But depending on how many lawsuits we see and the timeline of decisions, yes, that absolutely could be a question that they are forced to confront sooner rather than later– within the next decade or so, I would say.
There are already those mounting questions about weed management. And in other countries, farmers have already been forced to address that question. So in Australia, for example, they’re some years ahead of us in terms of herbicide resistance. So people have had to invest in machines– like an attachment to the combine that destroys weed seeds, or collects them. And they have those in addition to using the herbicides that still work for them.
Given my conversations with Bob Hartzler at Iowa State, who’s a weed specialist, we won’t see a situation where there’s no herbicides being used– at least not anytime soon. But they will need to start adding other tools and methods on to sort of compensate and extend the life of the herbicides that still work.
And in other countries, farmers have had success with that. So in his words, the outlook is not total doom-and-gloom for producers, but it is a shift that will have to happen in the States, eventually.
IRA FLATOW: I guess you have to plant the seeds with farmers about that, because they may not be so in favor of that kind of solution.
CHRISTINA STELLA: It’s interesting you say that. Because in Bob Hartzler’s view, farmers are not going to want to make that change. Because more than anything else, it’s just a significant investment. It’s a pretty big change in the way that they’re used to doing their work.
And I think that in a lot of cases, to switch-over to this technology, we’re talking hundreds of thousands of dollars in new equipment. But again, producers are resilient people. And from what I’ve been told, one day they’re not going to have a choice.
IRA FLATOW: That’s all the time we have for now. I’d like to thank my guests Christina Stella, the Harvest Public Media Reporter for NET, Nebraska’s public-media service. She’s based in Lincoln, Nebraska. Thank you, Christina, for taking time to be with us today.
CHRISTINA STELLA: Thank you so much for having me.