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Dicamba Damage: Does the Law Protect You?
Editor’s note: This article was written by Cal McCastlain and T.J. Lawhon, attorneys with the law firm Dover Dixon Horne PLLC in Little Rock, Arkansas. They represent parties whose crops are at risk from dicamba.
Controversy has spread across the country over the first season use of new formulations of dicamba. More than 2,700 dicamba-related injury cases are currently under investigation by various state departments of agriculture throughout the U.S.
According to the University of Missouri, about 3.6 million acres of soybean were injured by off-site movement of dicamba at some point during 2017. Arkansas experienced an unprecedented 985 complaints in 2017 involving the new dicamba.
In response, the Arkansas State Plant Board recently issued rules that prohibit its use in 2018 in Arkansas from April 16 through October 31, with some exceptions for pastures and households. Monsanto has filed a lawsuit attacking the Arkansas State Plant Board’s rule-making process (Pulaski County Arkansas Circuit Court No. 60CV-17-5964), as has a group of Arkansas farmers wanting a later cutoff date than that set by the Arkansas State Plant Board (Pulaski County Arkansas Circuit Court No. 60CV-17-6539).
As the courts and state and federal regulatory agencies evaluate whether, how, and where dicamba can be used, farmers have to remain diligent. Those who grow crops that cannot endure dicamba as well as those who want to retain their organic certifications are especially at risk. Knowing how farmers in other states are coping with the issue can help you shape your state’s dicamba strategy.
Farmers have used dicamba for decades to kill a wide spectrum of plants. Because of its volatility, crops that can’t tolerate the herbicide can be damaged. Dicamba is considered volatile because it can convert from a liquid/solid state to a gaseous/vapor state, travel in the air, and cause off-target damage even beyond adjacent fields.
Pinpointing the cause of this type of damage is challenging. With drift – the physical movement of the liquid droplets – the source can be easily traced. Drift damages can usually be settled by following the drift trail to the responsible party.
Because of the manner and time over which the volatility and off-target movement occur, volatility damages are more difficult to trace. The lack of such a trail prevents regulatory agencies from determining fault for enforcement actions, and insurance companies can take the position that there is not enough proof that their insured party caused the off-target damages. The insurance companies also can take the position that volatility is a product liability issue and must be taken up with the manufacturer.
The bottom line: If you have crop damage from off-target movement caused by volatility of a product, you may not have any way to recover damages other than the goodwill of a neighbor.
Until this year, the use of dicamba in row-crop areas was restricted to early-season burndown, when lower temperatures reduce volatility, and before susceptible crops emerged. Monsanto has developed what it characterizes as a low-volatility formulation of dicamba for in-season, over-the-top applications to soybeans and cotton bred to be resistant to dicamba.
In November 2016, the EPA issued a two-year registration for in-season use of the new formulation of dicamba, with 2017 being the first season for such use. The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) allows states to consider their local conditions and issue more restrictive requirements for using the pesticide than those issued by the EPA. Under FIFRA, states can even prohibit the use of the pesticide in that state.
The current state of affairs
During the summer of 2017, an unusually high number of complaints were filed in several states alleging crop damage from off-target movement of the new dicamba product. In response to an unprecedented number of complaints, the Arkansas State Plant Board banned use of the new dicamba product for 120 days, which went into effect July 11.
Even with that midseason ban, 985 complaints alleging dicamba damage were filed in Arkansas for 2017 and 2,708 were reported nationwide. Because of the number and nature of the complaints, the Environmental Protection Agency in October 2017 added more restrictions for using the new dicamba products in-season during 2018. Those additional restrictions include lower wind speed limits, restricted use designation, and more record keeping.
Critics argue that volatility is the problem, and these new requirements do not address volatility. Other states where soybeans and cotton are grown will likely be considering whether to take any additional actions for dicamba use for the 2018 growing season. Anyone who has an interest in crops that cannot endure dicamba should look into how their state will deal with dicamba for 2018.
Those decisions should take into account several factors:
- Local conditions (all weather elements, topography, soil types)
- Extent, nature, and cause of 2017 dicamba complaints
- Any local, state, or regional field tests addressing dicamba volatility
- Crop mix and proximity of susceptible crops to dicamba-resistant varieties of cotton and soybeans
- State regulatory authority and rule-making procedures
Needless to say, the controversy is not likely to subside anytime soon. In the meantime, what your state does, what regulations it imposes or doesn’t impose, can greatly affect your crops. Anyone who is at risk of damage from dicamba products should get involved in their state regulatory process.