SOWING THE SEEDS OF CONTROVERSY: WHAT THE DICAMBA DEBACLE REVEALS ABOUT THE MODERN PESTICIDE REGISTRATION PROCESS AND WHY THE EPA MUST ACT.

• Author: Knox, John Frank

1. INTRODUCTION 836 II. OVERVIEW OF THE DEVELOPMENT OF THE FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT 841 III. FIFRA's PESTICIDE REGISTRATION PROCESS 843 IV. A BRIEF HISTORY OF GENETICALLY MODIFIED CROPS AND DICAMBA 848 V. THE DICAMBA CONTROVERSY 850 VI. MONSANTO'S RESPONSE 857 VII. THE BASF RESPONSE 860 VIII. THE REGULATORY GAP 862 IX. WHY THE EPA SHOULD REQUIRE THE BASF APPROACH IN FUTURE PESTICIDE REGISTRATIONS 866 X. CONCLUSION 872 I. INTRODUCTION

   "[A] new type of thinking is essential if mankind is to survive and move to higher levels." - Albert Einstein (1)

   "Did you fill up your water jug? It's going to be hot today." These were the words my father asked me as I loaded up in his truck. My dad worked in the agricultural fertilizer and herbicide industry, straddling an area of northwestern Louisiana and southwestern Arkansas. He spent the majority of the spring, summer, and fall working fourteen hours or more each day with farmers to ensure bean fields were looking good, the corn was growing, and cotton was progressing as it should. I was fourteen at the time and full of youthful energy with little practical useful knowledge of my own outside of my schoolwork, which did not interest me much at the time. This turns out to be the perfect combination for a young farm hand, and my destination that morning was a 300-acre soybean field. The farmer that owned the plot was a very generous man that extended an offer for me to dove hunt on his land in the fall. My dad made it clear that I would not take advantage of this generosity and would work my way to earning this opportunity. By work, he meant that I would start at one end of a massive field and chop out pigweed and other unwanted vegetation competing with the knee-high soybean plants. No tractor, no air conditioning, just me, a long-handled hoe with a file to sharpen it as I wore down the edge, and my water jug. My dad would drop me off in the early morning, check on me throughout the day, and finally come to collect me for the ride home as the evening sky began to turn brilliant hues of purple and pink.

   Hot did not begin to accurately describe the sweltering inferno that can be summer in the piney woods of northern Louisiana or southern Arkansas. I was located just far enough north to miss the gulf breezes and afternoon rains, but far enough south to experience incredible humidity coupled with stifling heat that could drive a person mad as they start to cook in the blast furnace-like heat. These conditions do, however, provide great consistency for growing warm weather crops such as cotton and soybeans that enjoy the long days full of sunshine and warmth. American farmers are a tough group, working more hours before the sun rises than most of us work before lunch. The hard work is partnered with incredible risks, as hail storms, droughts, hurricanes, or a plethora of other natural occurrences can spell disaster for a working farm. An ever-present threat, also, are pests and weeds that sought to overtake and choke out young plants as they struggled through the growing season. I was able to witness first-hand the intricate calculus that American farmers go through each year as they select the right seed and fertilizer, assess when pesticides are necessary to stave off infestations, and constantly seek to beat back the legions of pigweed or other weed varieties that spring up seemingly overnight in their fields. So, day after day, weekend after weekend, I worked in my 300-acre battlefield to ensure it was the most pristine agricultural specimen west of the Mississippi River.

   Often, I would be frustrated to find a three-foot-tall pigweed plant in the rows I had just cleaned a few days before, so I would backtrack and walk the lengths of the long rows yet again. Looking back now I realize that eliminating weeds was not the point of my farming odyssey over that sweltering summer. It was about teaching me the value of hard work and giving me just a little taste as to how it would be to earn a living through sheer physical labor. Interestingly, I began to take a keener interest in my school work and my grades suddenly improved the following year. My soybean field did well, and I am sure my sweat saved the farmer an application or two of herbicide on that particular field. The reality I then came to understand was that pesticides and herbicides were vital tools for the fanner. It seems finding enough high school boys to dedicate summers to weeding beanfields is a tall order, and in truth, not nearly as effective at reducing weeds and increasing yields.

   It seems life often wraps lessons into experiences that we never anticipate. For example, Professor Kevin Bradley, a doctor of weed science at the University of Missouri, never anticipated that he would be a central figure in several full-length articles produced by the New York Times (2) and National Public Radio; (3) or Joe Mencer, a farmer from southeastern Arkansas, also likely never envisioned being called to serve as a member of a high-profile public task force created by the Governor of Arkansas. (4) Yet both Bradley and Mencer now find themselves on the frontlines of a skirmish turned full-on war, between American farmers, the pesticide industry, and state and federal regulators.

   This war involved the development and application of a new blend of an old herbicide known as Dicamba. Dicamba is a "selective herbicide... registered for use in agriculture on corn, wheat and other crops." (5) For years Dicamba was sprayed by farmers in attempts to control weeds and to eliminate the competition for sunlight and nutrients that growing crops require. (6) The chemical industry undertook efforts to refine and improve the effectiveness of herbicides such as Dicamba. (7) Eventually, a sophisticated method of genetically modifying the seeds of some crops to be resistant to herbicides such as Dicamba promised to revolutionize the fight against some strains of weeds. (8) Farmers could now spray growing fields with this Dicamba blend and the resistant crops would be unaffected while the weeds and other vegetation would wilt and die. (9) The commercial impacts for farmers and the ag-chemical industry are both impressive and potentially lucrative. The new Dicamba blends were hailed as a breakthrough in agricultural technology. (10)

   However, the rush to bring these products to market as quickly as possible was met with caution as some questioned the potential secondary effects Dicamba could have, which could result in devastating, albeit unintended, impacts on traditional seeds not formulated for use in the genetically modified method. (11) This is where the battle lines began to form. Scientists and state regulators began to request additional information and testing opportunities from the chemical manufacturers. (12) These requests were seen by the chemical companies as redundant and unnecessary, failing to consider the millions of dollars and years of development already sunk into these products by the companies, which would further delay bringing the new Dicamba blends to market. (13) Industry titan Monsanto was particularly adamant that any further testing was unnecessary and duplicative to an absurd degree. (14) Baden Aniline and Soda Factory (BASF), another powerhouse of the ag-chemical world, charted a different path, allowing university researchers to further examine and experiment on its Dicamba blend while still advancing it to market. (15) The United States Environmental Protection Agency (EPA) registered the new Dicamba blends from both, without requiring further testing. (16) The EPA, instead, relied largely on the extensive testing and analysis submitted by Monsanto and BASF, respectively. (17)

   However, starting in 2015 and building steadily through the 2016 and 2017 growing seasons, reports of crop damage began appearing, exhibiting the effects of Dicamba application on non-treated and non-targeted fields. (18) Soon these reports began to flood into agricultural offices throughout the Midwest and South, with Arkansas experiencing particularly severe impacts, registering over 1,000 individual crop damage complaints in 2017. (19) Accusations were levied, alternative explanations offered and outright denials were the order of the day between regulators, chemical company representatives, herbicide applicators, farmers, and scientists. By the summer of 2017, the percolating Dicamba drama detonated in the national media. Full exposes in the New York Times, (20) the Wall Street Journal, (21) and National Public Radio (22) documented how the product appeared to have been rushed to market and was now causing widespread damage to neighboring farms not utilizing the new genetically modified regime of seeds and herbicide. It is little wonder the story has become such an attractive scoop for reporters at the national level, it has all the hallmarks of a great story: big, bad chemical corporations interested in maximizing profits, likable underdog farmers working to scratch out a living in the heartland, and scientists pitted against the corporations. There was even a murder mixed into the intrigue as allegations of Dicamba misuse led to a dispute between neighboring farmers to turn violent. (23) By late 2017, the EPA was forced to publicly acknowledge the controversy existed when it added the new Dicamba blends to the list of restricted-use pesticides. (24) As we move towards the 2018 spring planting season, there is much concern over the future of Dicamba and all eyes are focused directly on the chemical industry and the EPA to see if the Dicamba experience will pave the way for a review of the pesticide registration process in the United States, particularly concerning modern innovations in genetically modified crop systems.

   This Article will examine the process and differing approaches employed by two of the largest chemical companies, Monsanto and BASF, in registering Dicamba with the EPA for public...