The Environmental Protection Agency failed to take into account the risks associated with dicamba before allowing Monsanto’s Xtendimax formulation of the herbicide to be used for the 2017 growing season, lawyers for environmental groups and small family farms told a federal appeals court Wednesday.

But the EPA, faced with a decision in the coming weeks about whether to extend the registration of new, low-volatility formulations of the herbicide, argued that its decision was legal and properly considered the impacts on the environment. A lawyer for Monsanto (now Bayer) also contended that the decision was lawful and that were was no proof that Xtendimax caused off-target damage last year.

The oral arguments can be viewed here.

The conditional registration of Xtendimax and Corteva Agriscience’s FeXaPan (the same formulation as Xtendimax) expires Nov. 9, and the registration of BASF’s Engenia expires Dec. 20, but Justice Department lawyer Brett Grosko told the court that EPA plans to make a decision “in the near future” so growers will have time to make seed decisions for next season.

In addition, Grosko said, “It will be an entirely new decision based on an entirely new record.”

The decision is significant because it will determine the conditions under which dicamba can continue to be used – or if it can continue to be used at all. EPA already agreed with the registrants late last year to adopt a number of new conditions for use of the new formulations. That was after university weed scientists reported approximately 3.6 million acres of soybean-damaged acres from use of the new formulations. Bayer, which recently bought Monsanto, sells dicamba-resistant soybeans and cotton for use with the herbicides.

This year, more than 1 million acres of soybeans have been damaged, according to university weed scientists, as reported by Missouri University weed scientist Kevin Bradley, who has discontinued his estimates for this year.

Grosko and Monsanto attorney Richard Bress received some hard questions from the three-judge panel, mostly from Circuit Judge William Fletcher, who asked Bress about Monsanto’s statement in its brief about reports of off-target damage in 2017.

“To the extent that complaints cited ‘off-target’ movement of pesticides, … nothing in the record demonstrates that XtendiMax (with its lower volatility formulation) was the cause,” the brief said.

Fletcher called it a “very strong sentence,” to which Bress responded, “Yes, we stand by that” and added, “Nothing in the record demonstrates that,” which prompted Fletcher to say, “You’re kind of ‘beyond a reasonable doubt’ in terms of what ‘demonstrates’ means.”

Bress, however, defended Xtendimax, saying it was not authorized for use in Arkansas, where 900,000 acres of damage was reported, that Xtendimax had less than 50 percent of the market nationwide, and that Monsanto had identified other causes of off-site damage, including tank contamination and applicator error.

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Of the off-target damage, he said, “Certainly there were plant scientists that came out with views that they believe” – that Xtendimax “could volatilize to a point where it could have been a cause of some of those incidents. We dispute that. We’ve done our own studies, your honor, that will be taken into account this fall” as EPA makes a new decision on registration.

Fletcher also asked about Monsanto studies of old and new dicamba formulations on four fields in Texas and Georgia, questioning why some of the data from the Texas study were not submitted to EPA. Bress, however, disputed that. “I don’t think it’s correct that we failed to provide them the data from the Texas tests,” he said.

Fletcher, saying that EPA relied only on data from the Georgia field test, asked “Is that enough? It doesn’t strike me as very much, given the great danger that everybody knew that dicamba posed to post-emergent fields.”

Arkansas, he said, looked at the same data and said “that’s not enough,” disallowing use of Xtendimax in the state for 2017. “And you guys turned out to be wrong,” Fletcher said. (Monsanto is challenging Arkansas’ decision not to allow Xtendimax use.)

George Kimbrell, an attorney with the Center for Food Safety, one of the plaintiff groups, told the judges that EPA did not heed warnings about dicamba’s volatility before approving the two-year conditional registration in 2016. When problems arose with off-site damage last year, the agency simply incorporated the data used for the 2016 decision into its 2017 decision, he said, and did not address the volatility issue in label changes.

And Paul Achitoff, a lawyer with Earthjustice, said EPA had underestimated the risk posed by dicamba to threatened and endangered species.  

If the court finds against EPA and throws out the conditional registration before Nov, 9, it’s not clear what the impact would be on EPA’s upcoming decision.

“What we need is guidance from the court,” Kimbrell said. A decision against EPA “will give guidance to the agency to do this the right way.”

But Circuit Judge Margaret McKeown said the court does not issue advisory opinions.

The other judge on the panel is Senior Circuit Judge Michael Hawkins. The plaintiff groups are the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity and and Pesticide Action Network North America.

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