By Matt Reese
Catch fish…and eat them. Humankind has been doing it for millennia.
I am the oldest of four boys and while we were growing up we would make occasional trips to the family cabin with our parents. While there, my brothers and I would regularly request that our father facilitate the process of helping us not only catch fish of a suitable size and quantity for a meal for six, but also fillet and cook them. Anyone who thinks conducting such an endeavor with four young boys sounds simple has clearly not undertaken the task. Nonetheless, we did this a number of times while growing up and have many fond memories of it, even if we rarely got enough fish cleaned for a complete meal.
The plan was to continue this simple Reese tradition in June when we went back to the cabin for a week of family, fishing and boating. The weather was spectacular and we collectively caught enough fish to be featured in multiple meals throughout the week. The highlight of the effort came when my son and his friend Carter went fishing with a couple of the old neighbor guys and came back with a pile of bluegill (and a perch). They learned plenty from the experienced fishermen and I learned much about the finer points of filleting a fish. And, best of all, they were delicious!
At the same time, just when it seemed like some semblance of certainty and normalcy was creeping back into the daily realities of 2020, a court on the other side of the country issued a ruling vacating the U.S. EPA registration of three dicamba products and instantly unraveled weed control plans for soybean growers around Ohio. The ruling made these products illegal to use (maybe, sort of). Farmers, even with a weed control plan in place, the proper crops, and a legally purchased herbicide, again found themselves scrambling to know what to do in a 2020 filled with constant uncertainty.
The Ohio Department of Agriculture estimated around 40% to 50% of the soybean crop planted in the state are dicamba tolerant varieties. The specific products impacted by the Ninth Circuit Court of Appeals ruling are: XtendiMax with VaporGrip Technology, Engenia Herbicide, and DuPont FeXapan with VaporGrip Technology. Tavium plus VaporGrip Technology for use on DT soybeans was not covered in this ruling as it was approved after the initial case was filed. Here is more on the case summarized by Peggy Kirk Hall, director of agricultural law, Ohio State University Agricultural and Resource Law Program.
The conclusion that drew the most attention from the court was the EPA’s determination that amending the dicamba registrations for two years would not cause unreasonable adverse effects on the environment. The court determined that the EPA erred in making this conclusion when it substantially understated several risks of dicamba registration, such as:
- Misjudging by as much as 25% the amount of acreage on which dicamba would be used in 2018.
- Concluding that complaints to state departments of agriculture could have either under-reported or over-reported the actual amount of dicamba damage, when the record clearly showed that complaints understated the amount of damage.
- Failing to quantify the amount of damage caused by dicamba, “or even to admit that there was any damage at all,” despite having information that would enable the EPA to do so.
But that’s not all. The court pointed out that the agency had also “entirely failed to acknowledge other risks, including those it was statutorily required to consider,” such as:
- The risk of substantial non-compliance with label restrictions, which the court noted became “increasingly restrictive and, correspondingly, more difficult to follow” and to which even conscientious applicators could not consistently adhere.
- The risk of economic costs. The court stated that the EPA did not take into account the “virtually certain” economic costs that would result from the anti-competitive effect of continued dicamba registration, citing evidence in the record that growers were compelled to adopt the dicamba products just to avoid the possibility of damage should they use non-dicamba tolerant seed.
- The social costs of dicamba technology to farming communities. The court pointed out that a farmer in Arkansas had been shot and killed over dicamba damage, that dicamba had “pitted neighbor against neighbor,” and that the EPA should have identified the severe strain on social relations in farming communities as a clear social cost of the continued registration of the products.
Since the June 3 ruling, there have been various actions taken by the U.S. EPA, the ODA, and the manufacturers of the products to try to add some clarity to the suddenly very muddled use of post- dicamba applications on soybeans in Ohio. There is still plenty to be figured out about the future of dicamba.
If they ever really existed, gone are the simpler days when a farmer could implement a plan on the farm and carry it out without the constant threat of outside various political, societal, legal and economic forces impacting those decisions. This year has repeatedly demonstrated the need to be ready for all things unexpected, complex and confusing as we found out how far gone the days of many previously taken-for-granted freedoms really may be.
This dicamba debacle that unfolded during my days at the family cabin is one more example that made me really appreciate one of the straight-forward family traditions that have remained constant for generations: catch fish…and eat them. For once in 2020, it was just as simple as that.
For much more on the dicamba issue, visit the OSU Ohio Agricultural Law Blog at https://ohioaglaw.wordpress.com.