Dicamba Producers Respond to Complaint by Farmers Association Against EPA Restrictions

BASF Corporation, Bayer Cropscience LP, and Syngenta Crop Protection LLC, which are intervenor defendants in a D.C. District Court lawsuit regarding the herbicide dicamba, filed separate answers on Tuesday to the plaintiffs’ amended complaint. 

The amended complaint, filed by two agricultural trade associations the American Soybean Association and Plains Cotton Growers Inc. against the Environmental Protection Agency (EPA), on April 27, reiterated the plaintiffs’ claims that the herbicide dicamba is a “critical tool” used by farmers and that the plaintiffs and their members rely on dicamba and crops engineered to withstand the herbicide. 

They alleged that the added “significantly more stringent” requirements for applying dicamba products in the EPA’s recent re-registration of the herbicide “impose growing restrictions and disrupt growing seasons which will diminish crop yields, cut productivity, and drive up operational costs.” According to the plaintiffs, the registration went beyond the EPA’s authority and is “arbitrary and capricious.” 

BASF, Bayer, and Syngenta, which each produce a dicamba-based herbicide, agreed with the plaintiffs that farmers depend on the dicamba-based growing systems they produce. In response to the plaintiffs’ allegations that the added requirements would cause decreased yields, the intervenors said that they did not know enough to determine if the allegations are true. 

“Bayer recognizes that the EPA requirements on the labels for its dicamba herbicides impose specific conditions for use that can have impacts on farm management, but lacks knowledge or information sufficient to form a belief about unspecified aspects of the decision,” Bayer’s answer claimed.

BASF in its answer admitted that the registrations for dicamba are supported by EPA research, and said that the dicamba registrations are needed to aid in fighting weeds that are resistant to other herbicides. Each of the companies generally admitted allegations regarding the need for dicamba and dicamba-based growing systems, and that without the product, farmers would need to weed by hand, which would be expensive and impractical.

According to the complaint and the companies’ answers, the application buffers required in the registration are over twice the size of the buffers required in the 2018 registration, but the answers explained that the intervenors did not have sufficient information to determine the effects of the newly required buffers. They denied that the restrictions exceed the EPA’s authority, and BASF denied that the plaintiffs are entitled to relief from the court.

In its affirmative defenses, BASF claimed that the plaintiffs’ allegations are barred by the statute of limitations or other doctrines, and that they are “not reviewable due to the lack of final agency action.” Syngenta also alleged in its affirmative defenses that the plaintiffs lack standing, are barred by the statute of limitations, and did not state a claim where relief could be granted.

BASF cited a separate lawsuit filed by various environmental organizations asking for the registration of dicamba to be vacated because of the potential harmful environmental effects of dicamba.

The defendants, including the EPA and individuals associated with it, asked for an extended deadline to file their answer to the amended complaint.

Bayer is represented by Latham & Watkins LLP, BASF is represented by DLA Piper LLP and Beveridge & Diamond P.C, and Syngenta is represented by Arent Fox LLP. The farm trade associations are represented by Bradley Arant Boult Cummings LLP, and the EPA by the U.S. Department of Justice.