AuthorKimbrell, George
  1. INTRODUCTION 671 II. A VERY BRIEF HISTORY OF PESTICIDES AND MODERN INDUSTRIAL AGRICULTURE 672 III. THE FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT(FIFRA) 677 A. The FIFRA Framework 677 B. Conditional Registrations and Registration Review 679 C. Application of the Unreasonable Adverse Effect Standard 681 IV. CASE STUDY: THE DICAMBA ISSUE AND LITIGATION 686 A. Dicamba and Drift Harm 687 B. Chronological History 690 1. "A Potential Disaster" 691 2. 2016 Registration 693 3. The 2017 Season: "We have never seen anything like this before . . . in our agricultural history." 695 4. The 2018 Growing Season 698 5. The 2018 Registration Continuation 701 6. The 2019 and 2020 Growing Seasons 701 a. Tree Damage 703 b. 2020 Injuries 705 c. The Ninth Circuit's Decision 706 i. Satisfactory Data 707 ii. Failure to Support Registration with Substantial Evidence 708 Hi. Substantially Understated Risks 708 iv. Risks EPA Unlawfully Failed to Acknowledge and Consider 711 v. Summary of Holdings and Remedy 715 vi. Postscript 717 vii. Dicamba 3 718 V. PULLING BACK AND GOING FORWARD 720 A. The Dicamba Decision: Lessons Learned 720 B. Putting NFFC in Context 723 1. Pollinator Stewardship Council v. EPA (Pollinator I) 723 2. Natural Resources Defense Council /Center for Food Safety v. EPA (Nanosilver) 724 3. National Family Farm Coalition v. EPA (Enlist Duo) 726 C. The Next Chapter: Ongoing FIFRA Battlegrounds 729 D. Pesticide Litigation Outside of FIFRA 731 1. Endangered Species Act 732 2. State Product Liability Claims 737 VI. CONCLUSION 741 I. INTRODUCTION

    On a muggy day in August 2017, a Missouri farmer looked out across his fifty-eight-acre soybean field, arms folded, and sighed. (1) What was shaping up to be one of his most productive plots was now full of plants with shriveled leaves, curled upward like little cups. It was an unmistakable pattern of destruction with which he was all too familiar: the herbicide dicamba. His field, adjacent to his own cattle pastures and a dirt road, shared one side with a neighboring farmer's soybean field. He recalled seeing his neighbor spray his crops recently and noticed the damaged plants were on the side closer to his neighbor's land, a strong sign that dicamba had drifted onto his field.

    He bent down to examine the leaves, took a picture with his phone, and thought about what to do next. He knew about the new "GE" soybean seeds on the market, genetically engineered to be resistant to yet another herbicide, the latest new techno-fix, now that the weeds had all become resistant to Roundup, their old standby weed killer. He deliberately bought conventional seeds, not the patented ones engineered to resist the powerful herbicide that he purposefully avoided spraying in his own fields, so that he could grow his own seeds for replanting, as he and his forefathers had done. But now he might have no choice: suffer more losses, stop planting the fields hit by drift, or give in and buy the damned GE seeds purely to defend himself from damage from his neighbors.

    This was not what the fourth-generation farmer had in mind for the future of the land his father bought with help from the G.I. Bill in 1948. And neither he nor his wife could have imagined something like this creating such tensions between them and their neighbors, arguments about who caused this damage and why it kept happening, leaving hard feelings and ill-will behind. He had heard how impossible it was to follow the lengthy, complex use directions, even if farmers tried their best to avoid drift, as he knew his neighbor had. Don't spray if the wind is blowing in a certain direction, or if it is above or below a certain speed, or' if it is going to rain within twenty-four hours, and on and on. Had whoever wrote these instructions ever been to a real Midwestern field in summer?

    Unfortunately, versions of this story unfolded thousands of times over, from Arizona and Texas, to the farmer's home in Missouri and nearby Arkansas, up to Iowa, Nebraska and Minnesota, over to Tennessee and Illinois, and more. Soybean growers reported much of the dicamba damage, which often hammered their crops multiple times in a single season, but it was by no means limited to them. Because this herbicide is an equal opportunity destroyer--it damages just about any plant that produces a flower--many others had tales to tell. Fruit orchards and vineyards were injured, some devastated, organic vegetable farms and gardens torched. Millions of acres in all, waves of damage unlike any ever seen in the history of U.S. agriculture. The scope of damages caused by dicamba boggled the farmer's mind. At what costs, he thought? Money, sure. But livelihoods. The loss of his freedom to farm, to decide what he grows. And in and beyond farms? Beekeepers across the country saw honey production plummet thanks to dicamba's suppression of flowering plants. Millions of trees damaged, in nature reserves, along rural roadways, in peoples' yards. In some farming towns, it is difficult to find a tree not affected by this potent plant killer. And broader harm to flora and fauna, plants, birds, insects, and other common and imperiled creatures whose plant-based natural habitats are so disrupted by the damage dicamba has wrought. How did we get to this point, he thought, where such devastation has become just another fact of life? Why did we?


    Industrial agriculture as we know it today is a relatively recent development--a blip on the radar compared to humans' 12,000-year history of agricultural cultivation. (2) Many of the key developments transforming agriculture into its current industrial mode, especially prevalent in rich nations, happened in the past sixty years. (3) The second half of the twentieth century brought the so-called "Green Revolution," which promoted the use of new hybrid seeds and the many inputs--synthetic fertilizers, irrigation, insecticides, herbicides--they required to achieve their potential, as well as relentless mechanization and other technological changes. (4) Its start coincided with World War II when a litany of new chemicals were developed as poisons intended for chemical warfare. (5) After the war ended, the chemical manufacturing industry needed a new purpose for these chemicals and ultimately found one in our food system. (6) Thus, along with fossil fuel-dependent mechanical technologies and government policies subsidizing broad-scale commodity . crops like corn and soy for animal feed, pesticides quickly became a core pillar of the new age of industrial agriculture. (7) Indeed, propped up by this heavy reliance on pesticides and fertilizers, farms grew larger and more specialized, with steadily expanding monocultures displacing farm animals, which were consigned to confined animal feeding operations. (8) Where previously, manure was used as an elegant, natural systemic solution to replenish the soil in crop-diversified, livestock integrated, closed-loop farms, manure later became a form of hazardous waste, and in the name of specialization, two separate incomplete systems were formed, both creating pollution. (9) Presto: modern industrial agriculture was born.

    Pesticide spraying grew exponentially to keep up with the demands of large-scale farming, benefiting from the development of World War II synthetic chemical insecticides. (10) One of these was the now-infamous DDT. (11) DDT was effective for long-term pest control because of its persistence in the environment. (12) In 1962, American marine biologist, conservationist, and author Rachel Carson, regarded by many as the mother of the environmental movement, published Silent Spring, providing a vivid warning of the current (and future) ecological consequences of indiscriminate pesticide use. (13) Shortly thereafter, DDT was banned, Congress created the Environmental Protection Agency (EPA), and enacted many of today's fundamental environmental statutes for it to oversee. (14) These statutes included a complete overhaul of the pesticide law, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). (1) *

    Yet environmental and health damage from pesticides has continued and increased. Because pesticides are designed to kill living organisms, it is unsurprising that pesticide poisoning is implicated in twenty-four percent of U.S. species decline. (16) Countless mammals, birds, fish, and other wildlife are exposed to these toxins from direct spraying, consuming contaminated prey, and drinking contaminated water. (17) These biocides are ubiquitous in our nation's waterways from both runoff and spray drift. (18) Of particular note are the documented effects of pesticides on bees, which play a vital pollination role in both nature and agriculture. (19) Beyond concerns about acute toxicity, we know that pesticides have chronic effects on lifespan, physiology, reproduction, and behavior of non-target organisms, including humans. (20) Farmworkers and farmers are on the front lines of exposure to agricultural chemicals and suffer from neurological problems, birth defects, and various types of cancer as a direct result. (21) This creates an enormous equity issue: those who are most vulnerable face the greatest risks as farmworkers often lack access to healthcare and fear workplace retaliation for reporting occupational exposure to pesticides. (22)

    Pesticides alone are only half of the modern story. These environmental and human health harms have been exacerbated since the mid-1990s because of the large-scale planting of GE commodity crops specifically engineered to withstand the additional spraying of plant-killing pesticides (also known as herbicides) over a longer period of time. (23) The overwhelming majority of commercial GE crops are genetically engineered by pesticide companies, such as Monsanto (recently acquired by Bayer), (24) Syngenta (acquired by ChemChina), (25) and Corteva (the merged agricultural...

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