When drifting clouds of poisonous dicamba herbicide killed 30,000 of his peach trees, a Missouri farmer blamed Monsanto and BASF. A jury agreed that the manufacturers were to blame and awarded him $265 million.
Since then 100 farmers have filed suit in state courts, and in federal court in Missouri where the cases are consolidated before U.S. District Judge Stephen N. Limbaugh, Jr. in MDL 2820, IN RE: Dicamba Herbicides Litigation.
More than 2,000 farmers are likely to become plaintiffs, according to plaintiff lawyer Joseph Peiffer of the Peiffer Wolf Carr & Kane law firm. Federal crop insurance often does not cover their losses.
On top of that, a coalition of farmers and conservationists have sued the US Environmental Protection Agency for approving it in the first place – once in 2016 and again in 2018.
“Pesticide companies, right now, are only being held in check by tort claims and personal injury lawyers,” said Nathan Donley, a senior scientist with the Center for Biological Diversity, who is also suing the EPA. “EPA keeps making horrible decisions, and people are having to seek damages from something that could’ve been avoided in the first place.”
The defect in Monsanto’s XtendiMax and BASF’s Engenia brand of dicamba is “volatility,” which is when an herbicide moves off-target in the hours or days after spraying. Scientists say volatility is the main cause of crop damage from dicamba.
Farmers first plant genetically engineered dicamba-resistant cotton and soybeans. Then they spray dicamba to fight pigweed, but this has destroyed 4.7 million acres of soybeans and crops on neighboring farms, drifting far outside target zones.
Older and newer versions of dicamba have the same volatility flaw, and the damage can take weeks to appear. Arkansas, Kansas, Missouri, and Tennessee have all taken action to restrict dicamba products over a concern with the off-target drift.
The Missouri peach farmer, Bill Bader and his family-owned Bader Farms, filed suit in the MDL. In the first bellwether trial, the jury awarded $15 million in compensatory damages on February 14, 2020. The following day, they added another $250 million in punitive damages to be paid by Bayer AG (Monsanto’s German owner) and BASF. The jury found that Monsanto and BASF conspired in actions that created what Bader’s attorney called an “ecological disaster” designed to increase profits at the expense of farmers such as Bader.
The companies were damned by numerous internal corporate documents discovered in the dicamba litigation that convinced the jury of the company’s liability, according to Bader Farms attorney Bill Randles.
Randles has obtained hundreds of internal Monsanto and BASF corporate records demonstrating the companies were aware of the harm their products would create even as they publicly claimed the opposite. He said one BASF document referred to dicamba damage complaints as a “ticking time bomb” that “has finally exploded.”
EPA ignores its own scientists
BASF and Monsanto conspired together in a dicamba collaboration in 2011. In 2016, the U.S. Environmental Protection Agency approved Monsanto’s dicamba-based herbicide under a conditional two-year registration. Both XtendiMax and Engenia were first sold in the US in 2017.
The companies said their new dicamba herbicides would be less volatile and less prone to drift than old formulations of dicamba. But they refused to allow for independent scientific testing.
By 2018, farmers had filed more than 4,200 official complaints that damage to at least 4.7 million acres of soybeans from the use of dicamba.
Yet the EPA reapproved dicamba for another two years on October 31, 2018.
Four farm and environmental groups – the National Family Farm Coalition, the Center for Food Safety, the Center for Biological Diversity, and the Pesticide Action Network — filed suit against the EPA in 2017. National Family Farm Coalition v. USEPA, No. 17-70196 (9th Cir. 2019)
The groups argue that the federal agency broke the law when it first registered XtendiMax, Engenia, and DuPont’s FeXapan) in 2016, by ignoring key requirements of the Endangered Species Act and the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).
The Ninth Circuit already heard arguments in August 2018, but the case was mooted out by the EPA’s October 2018 decision to reapprove the herbicide for two years. As a result, the Ninth Circuit expedited the case to ensure it is heard before the EPA makes another registration decision later this year.
In the 2018 re-registration, the EPA found the off-target movement in the 2017 and 2018 growing seasons may have resulted in harm to off-target plants and endangered species of animals. Again, the agency did not reach out to the Fish and Wildlife Service, but decided to take additional mitigation requirements, including an omnidirectional buffer in counties where endangered species habitat exists, the lawsuit alleges.
Documents included as part of the lawsuit show that the EPA ignored its own scientists’ recommendations for a larger buffer zone around fields to protect endangered species and that Monsanto had dozens of off-target incidents during its testing of the herbicide.
More than 2,700 farms have suffered dicamba damage, according to University of Missouri crop science professor Kevin Bradley.