UPDATE: On February 14, 2020 the jury in Bader Farms, Inc. v. Monsanto Co., No. 1:16-cv-299 (E.D. Mo. 2020) ruled in favor of the plaintiff, Bader Farms, and awarded $15 million dollars in damages. The following day, February 15, the jury awarded an additional $250 million in punitive damages. To read more click here or here.

————————————————————————————————————————————————————-

This article is the first in a series that the National Agricultural Law Center will publish over the next several weeks discussing the various on-going lawsuits concerning the chemical herbicide known as dicamba. How these lawsuits ultimately play out could have far-reaching impacts on how pesticides and pesticide-resistant, genetically-engineered crops are used in agriculture.

Dicamba is a chemical compound that is used in herbicides that are designed to kill annual and perennial broad-leafed plants. It works by mimicking natural plant hormones to cause abnormal growth and eventually death. Dicamba often is more toxic to target plant species than glyphosate, the chemical used in Roundup, and is used to combat glyphosate-resistant species, including palmer amaranth, a particularly troublesome species of pigweed. While dicamba is an extremely effective herbicide, it also is subject to volatility, meaning that it easily becomes airborne and drifts off-target during and following application. Due to its trouble with volatility, dicamba has historically been used in the late winter and early spring as a pre-emergent, meaning that it was applied directly to weeds prior to planting crops as a burndown. By applying dicamba prior to planting, damage that could occur to crops due to the pesticide’s volatility was prevented because most sensitive species had not yet emerged.

In 2015, Monsanto Company (“Monsanto”) released a line of soybean and cotton seeds that were genetically engineered to be resistant to dicamba. Monsanto’s idea was that farmers would plant the seeds and then spray a dicamba-based herbicide over the top of the crops to kill weeds that grew later in the planting season. Although the accompanying dicamba-based herbicide, XtendiMax, would not be registered by the Environmental Protection Agency (“EPA”) until 2017, Monsanto began selling its dicamba-resistant seeds to farmers in 2015. While Monsanto reportedly warned consumers that they were not allowed to apply older forms of dicamba to the new, dicamba-resistant seeds, the following growing season saw an increase in the number of reports of damage attributed to dicamba drift. As the number of reports grew, so did the number of lawsuits concerning dicamba.

Many of these lawsuits were filed against Monsanto by farmers alleging injury to their crops, one was filed against EPA for approving Monsanto’s dicamba-based pesticide, and one was filed by Monsanto itself against an Arkansas regulatory body that banned the use of dicamba in the state. All of these cases are currently on-going, and it is unclear yet what their ultimate result will be.

Bader Farms

The first lawsuit filed by a producer against Monsanto for damage caused by dicamba drift was filed by Bader Farms, Inc. (“Bader Farms”) in 2016. The suit, Bader Farms, Inc. v. Monsanto Co., No. 1:16-cv-299 (E.D. Mo. 2019), alleges widespread damage to the plaintiffs’ peach orchards, along with a multi-million dollar financial loss. At the center of Bader Farms’ original complaint was Monsanto’s genetically modified Roundup Ready 2 Xtend soybeans and Bollgard II Xtend cotton seeds (“Xtend crops”), dicamba-resistant seeds that the plaintiff alleged were released without an accompanying EPA-approved dicamba herbicide in 2015 and 2016. The plaintiffs alleged that by selling the Xtend crop seeds without a corresponding herbicide, it was foreseeable to Monsanto that farmers would use old, highly volatile, drift-prone dicamba that had a strong chance of damaging neighboring crops.

In 2017, Bader Farms filed an amended complaint with the court, adding BASF Corporation (“BASF”), another pesticide manufacturer, as a defendant to the case. Bader Farms also added new complaints with respect to dicamba-related damage it suffered during the 2017 growing season. That damage, according to Bader Farms, occurred as a result of Monsanto continuing to market Xtend crops along with dicamba-based herbicides that had been approved by EPA. In 2017, two dicamba-based herbicides were available to growers, XtendiMax and Engenia. Monsanto manufactured XtendiMax and BASF manufactured Engenia. According to Bader Farms, the damage caused in 2017 was greater than that caused in either 2015 or 2016. Bader Farms accused Monsanto and BASF of working together to manufacture, market, and sell dicamba-based products that they knew would cause harm.

Multi-District Litigation

Bader Farms was not alone in filing lawsuits against Monsanto and BASF. After the 2017 growing season, a host of new cases were filed against the two companies alleging injury due to dicamba-related damage. The plaintiffs in these cases were all soybean farmers located across eight different states. Ultimately, all the dicamba-related cases filed against Monsanto and BASF, including the original case filed by Bader Farms, were consolidated in a multidistrict litigation known as In re: Dicamba Herbicides Litigation, No. 1:18-md-02820 (E.D. Mo. 2019). The consolidation order centralized suits brought by plaintiffs from Arkansas, Illinois, Iowa, Kansas, Mississippi, Missouri, Nebraska, South Dakota, and Tennessee. The case is now located in a United States District Court for the Eastern District of Missouri.

The multidistrict litigation resulted in the filing of two different Master Complaints, the Crop Damage Class Action Master Complaint (“Crop Damage Master Complaint”) and the Master Antitrust Action Complaint (“Master Antitrust Complaint”). The Crop Damage Master Complaint was brought against both Monsanto and BASF. It concerned three dicamba-based herbicides – XtendiMax, Engenia, and FeXapan – as well as Monsanto’s dicamba-resistant Xtend seeds (collectively referred to as the “Xtend Crop System”). The plaintiffs in that complaint all challenged the design and sale of Monsanto and BASF’s dicamba herbicide products. Each plaintiff, on behalf of itself and a state-wide class, has raised claims under its own state’s laws, while also joining together to represent a nationwide class raising claims under the federal Lanham Act. The Master Antitrust Complaint alleged that Monsanto and BASF had partnered to monopolize herbicide-tolerant traits. Monsanto in particular was accused of using the threat of crop damage to leverage sales of its dicamba-tolerant traits.

After consolidation, the plaintiffs in Bader Farms moved to follow their own separate litigation schedule. The court granted this motion. As a result, Bader Farms remains a part of the In re: Dicamba litigation, but will file separate briefs, have a separate trial, and its own judicial opinions. The decision to grant Bader Farms its own schedule was based on several factors, including the fact that Bader Farms was the only plaintiff alleging damage to a crop other than soybeans, and that the Bader Farms litigation had progressed to a more advanced stage than any of the other consolidated lawsuits.

To date, the judicial opinions that have come out of either Bader Farms or In re: Dicamba have all been on motions to dismiss filed by the defendants. Those opinions have considered many of the claims brought by plaintiffs against the defendants, evaluated the merits of those claims, and determined which claims could go to trial and which could be dismissed. Trials for each case are scheduled to begin in 2020. The trial for Bader Farms is currently set to begin on January 27, 2020, while the trial for In re: Dicamba is scheduled to start during August, 2020.

Challenging EPA Approval

The third dicamba-related lawsuit currently making its way through the judicial system was filed by four public-interest organizations against both EPA and Monsanto. In Nat’l Family Farm Coal. v. U.S. Envtl. Prot. Agency, No. 19-70115 (9th Cir. 2019), the plaintiffs allege that EPA’s registration of Monsanto’s dicamba-based XtendiMax pesticide was an unlawful violation of the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) and the Endangered Species Act (“ESA”). According to the plaintiffs, EPA had violated FIFRA by registering XtendiMax as a conditional use pesticide under FIFRA without meeting the necessary requirements. The plaintiffs also alleged that EPA had violated the ESA by using the wrong standard to conclude that registering XtendiMax for use would not have an effect on listed species.

The groups first filed suit in 2017, challenging EPA’s 2016 approval of XtendiMax. However, after EPA renewed their approval of the pesticide in 2018, the court dismissed the case. Because EPA’s 2018 approval of XtendiMax now controlled the product’s use and availability, the court concluded that the plaintiffs’ challenge of the 2016 approval was moot. Although it dismissed the case for mootness, the court concluded that the plaintiffs would be allowed to refile in order to challenge the 2018 approval of XtendiMax, and that any refiling would be granted expedited scheduling.

The refiled case once again alleged that EPA had violated FIFRA and the ESA by approving XtendiMax in 2018. The plaintiffs are seeking to have the court vacate EPA’s 2018 registration of XtendiMax.

At the State Level

Finally, it is worth noting that lawsuits concerning the use of dicamba are not just being brought against herbicide manufacturing companies in federal court. In 2017, Monsanto filed suit in Arkansas state court against the Arkansas Plant Board (“Plant Board”) over state regulations that the Plant Board put in place to restrict the use of Monsanto’s dicamba-based herbicide, XtendiMax. Through the lawsuit, Monsanto Co. v. Arkansas State Plant Bd., No. CV-18-548, Monsanto sought to invalidate regulations the Plant Board passed in 2016 and 2017, arguing that the 2016 rule had effectively prohibited in-crop use of XtendiMax in 2017, and that the 2017 rule would effectively prohibit in-crop use of XtendiMax in 2018. According to Monsanto, the Plant Board had violated both the Arkansas and the United States constitutions in passing the regulations. Monsanto also argued that the statute which determined how members were appointed to the Plant Board violated the Arkansas Constitution by allowing some members to be appointed by private industry.

In the same year, a similar lawsuit was filed against the Plant Board by several farmers in Arkansas. The farmers had used dicamba-based herbicides on their fields in 2017 and wished to do so again in 2018. Although the farmers had petitioned the Plant Board to adopt a regulation that established May 25 as the cut-off date for in-crop dicamba use for the 2018 growing season, the Plant Board adopted a cut-off date for early April. The farmers initiated a lawsuit, McCarty v. Arkansas State Plant Bd., No. CV-18-309, arguing that the Plant Board unreasonably ignored the farmers’ petition to set a May 25 cut-off date. Like Monsanto, the farmers also argued that the statute which governed how members were appointed to the Plant Board violated the Arkansas Constitution by delegating appointment power to private industry.

Both lawsuits have been before the Arkansas Supreme Court on issues of sovereign immunity, the rule of law that renders states immune from civil suits and criminal prosecution. Although the Plant Board argued that the doctrine of sovereign immunity barred both lawsuits, the Arkansas Supreme Court concluded that both Monsanto and the farmers could bring their claims. The cases were remanded back to the lower courts for further rulings.

Upcoming

Over the next several weeks, the National Agricultural Law Center will publish a series of articles taking a more in-depth look at each of these cases. The coming articles will examine various claims brought by the plaintiffs and how the courts have treated each claim so far.

 

To read the Crop Damage Master Complaint, click here.

To read the Master Antitrust Complaint, click here.

To read the complaint in Bader Farms, click here.

To read the court’s opinion on motions to dismiss in In re: Dicamba, click here.

To read the court’s opinion on motions to dismiss in Bader Farms, click here.

To read the complaint in  Nat’l Family Farm Coal. v. U.S. Envtl. Prot. Agency, click here.

To read the Arkansas Supreme Court’s opinion in Monsanto Co. v. Arkansas State Plant Bd., click here.

To read the Arkansas Supreme Court’s opinion in McCarty v. Arkansas State Plant Bd., click here.

For more National Agricultural Law Center resources on pesticides, click here.