After five years of reported crop damage by the weedkiller dicamba, German agribusiness companies Bayer and BASF are heading to trial to defend themselves against charges that they intentionally caused the problem in order to increase their profits.
The lawsuit, originally filed in November 2016 by a southeastern Missouri peach farmer, accuses Monsanto, which was acquired by Bayer in 2018, and BASF of creating the circumstances that have damaged millions of acres of crops.
Bill Bader, whose Bader Farms is the state’s biggest commercial peach operation, alleges his orchards have been damaged by drifting dicamba each year since 2015.
Bayer and BASF deny the allegations.
For years, the companies have blamed the damage reported by farmers on other factors, including other herbicides, applicator misuse and weather events.
In Bader’s case, Bayer asserts his problems were caused by a fungus, not dicamba.
In an emailed statement, Bayer spokesman Kyel Richard said Bader Farms peach orchards are “suffering from a pervasive soil fungus that kills peach trees” — a problem that has afflicted commercial peach production elsewhere in Missouri.
The lawsuit, Richard said, is an attempt “to shift responsibility to Monsanto and BASF and away from what is really causing Bader Farm’s alleged damages.”
BASF spokeswoman Odessa Hines, in a statement, said the company’s “products meet all regulatory standards, including rigorous safety and environmental testing. We look forward to defending our product in this case.”
The trial is set to begin Monday in the United States District Court for the Eastern District of Missouri in Cape Girardeau.
Dicamba as an alternative
Dicamba, a volatile weedkiller originally developed in the 1960s, gained recent popularity after Monsanto developed genetically engineered soybean and cotton seeds that could withstand being sprayed by the herbicide.
Bader Farms blames suspected exposure to dicamba for damaging peach trees.
Monsanto denies it bears responsibility for actions by 'individuals who knowingly and intentionally broke state and federal law.'
Monsanto developed the dicamba-resistant seeds after many weeds started developing resistance to glyphosate — the active ingredient in Roundup, the most widely used herbicide in the world. Dicamba kills plants by causing them to grow too quickly, which causes them to wither and die.
Monsanto released the cotton seeds in time for the 2015 growing season and released the soybean seeds for the 2016 growing season. However, the accompanying herbicide, versions of which were created by both Monsanto and BASF and touted to be less likely to drift, was not approved by the U.S. Environmental Protection Agency until the 2017 growing season.
Many crops, including nonresistant soybeans and specialty crops, are extremely sensitive to dicamba and can be damaged by small amounts in the air.
Prior to the resistant seeds, dicamba had not been widely sprayed during growing season because of its propensity to drift. Instead, it was largely used as a “burndown” weedkiller to control weeds before planting and after harvest.
During those two years where the seeds were planted and the herbicide was not approved, many farmers illegally sprayed older versions of dicamba, which were not approved for use on the crops and were likely to drift. This illegal spraying harmed Bader’s crops, the Bader Farms suit alleges. The lawsuit also alleges Monsanto and BASF knew this would happen because it would likely lead to future sales because farmers would engage in “defensive” planting to protect their crops from drift.
Even after their new versions of dicamba were approved, the damage continued. In 2017, an estimated 3.1 million acres of soybeans were damaged by dicamba, according to an analysis by University of Missouri crop science professor Kevin Bradley.
The pesticide drift had other effects, such as damaging sensitive crops like Bader’s peach farm, said Bev Randles, an attorney for Bader Farms. Randles said Monsanto and BASF are responsible for releasing herbicides that they knew were volatile.
“There is no such thing as a dicamba-tolerant peach tree,” Randles said.
The cumulative drift from years of spraying caused crippling damage to thousands of Bader’s trees and led his peach farm to no longer be a sustainable operation, the lawsuit alleges. The overall lost future revenue is estimated at more than $55 million.
“Every acre of Plaintiffs’ orchards, fields, and crops has suffered dicamba damage, resulting in substantial yield losses and lost profits,” the lawsuit alleges.
Each year, more acres were planted with dicamba-resistant soybeans, and the lawsuit alleges some of this was “defensive” planting to help protect crops from being damaged by drifting dicamba. The number of dicamba-resistant soybeans planted in the U.S. increased from about 20 million acres in 2017 to 40 million acres in 2018 to 60 million acres in 2019, according to Bayer.
In response to suspected damage nationwide, the U.S. Environmental Protection Agency has increased the restrictions on the dicamba’s usage each of the past two years, and many states have imposed additional restrictions, including requiring increased training and implementing cut-off dates after which the chemical cannot be sprayed.
Even with those restrictions, crop damage increased, according to state pesticide complaint numbers. In 2019, Illinois, the largest soybean producing state, more than 700 pesticide misuse complaints were filed, compared to fewer than 130 in 2016.
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Updated at 10:30 a.m. Saturday to include Bayer statement