Dicamba Drift: What are the Legal Remedies?

September 14, 2017 | Kristine A. Tidgren

Update: On October 13, 2017, the EPA announced an agreement with Monsanto, BASF, and Dupont regarding measures to minimize damage from dicamba drift. Read the press release here.

As the reports of damages stemming from dicamba drift increase, questions swirl. Just what is the problem? Who’s responsible? What can be done to prevent future damage? While there are no clear answers to many of these questions, it may be useful to review the general legal principles that apply to herbicide drift and discuss how they apply to the current problem.

Regulatory Framework

Pesticide applicators and manufacturers are regulated by both state and federal law.

Iowa Code chapter 206 governs the use of pesticides in Iowa. The definition of “pesticides” includes herbicides designed to control weeds. The law tasks the Iowa Department of Agriculture and Land Stewardship (IDALS) with licensing and regulating pesticide applicators. Even those applying pesticides to their own lands must obtain a license before applying restricted use pesticides. Commercial applicators must also submit evidence of financial responsibility. IDALS additionally regulates the distribution and sale of pesticides within the state, although federal law also applies. The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizes the Environmental Protection Agency (EPA) to regulate the sale, use, and distribution of pesticides. The EPA is responsible to register new formulations of chemicals throughout the United States. States are allowed to implement more restrictive laws or regulations with respect to the use of pesticides. They can also pass laws consistent with FIFRA. They cannot, however, create labeling or packaging requirements "in addition to or different from" those imposed by FIFRA.

Pesticide drift occurs when the chemicals land outside of the target area. When farmers suspect that their land has been damaged because of pesticide drift from a neighboring farm, they should consider two courses of action. First, they should file an “incident report” with IDALS’ Pesticide Bureau. Second, they should consider whether to pursue a private action to recover damages. Once an incident report is filed, IDALS will decide whether to open an investigation to determine if a pesticide was misused or if any state or federal law was violated. Farmers must file incident reports within 60 days of the date of damage and before 25 percent of the crop has been harvested.

Depending upon the results of the investigation, IDALS may initiate enforcement actions, which can result in any of the following:

  • Notice of Violation
  • Official Notice
  • Civil Penalty of commercial applicators of up to $500  
  • Pesticide License Suspension or Revocation
  • Referral to EPA for review and enforcement action
  • License and/or certification suspension or revocation 
  • Product Stop Sale, Use or Removal Order 
  • Crop Embargo or Detainment

IDALS may find a violation, for example, if the applicator operated in a “faulty, careless or negligent manner” or “made a pesticide recommendation or application inconsistent with the labeling.” While IDALS can impose civil penalties, it does not have the authority to collect damages on behalf of private landowners. The enforcement action may provide helpful evidence to a landowner, but the landowner must initiate a private legal action to seek monetary damages against the parties responsible for the harm if the parties who caused the harm are not willing to pay for the damage. Crop insurance will not cover losses caused by pesticide drift.

Already in 2017, IDALS has received a record number of incident reports of crop damage stemming from pesticide misuse. About half of the 250 or so 2017 complaints are dicamba related. Although this number is not as high as that in some other states, it continues to climb.

Private Lawsuits

Farmers injured by pesticide drift may bring private legal actions to recover damages. Depending upon the facts, such lawsuits may be brought against the applicator, the manufacturer, or both. Several legal causes of action may be included in such lawsuits, including claims of negligence, nuisance, trespass, or strict liability, as well as allegations of statutory violations.

The primary cause of action against an applicator is generally negligence. If the landowner can prove damage caused by the applicator’s failure to use reasonable care, the action will be successful. Negligence can be proven, for example, by showing that the applicator did not follow the directions on the label, use the pesticide in the manner for which it was intended, or apply the chemical in a careful manner, taking into account weather and other key factors. To prevail in a negligence action against the manufacturer, a party who has been damaged must, for example, show that the manufacturer did not use reasonable care in its marketing, labeling, or distribution of the product. Negligence claims can also include allegations of product defects and failure to warn, although manufacturers can sometimes be found responsible for a manufacturing defect under a strict liability standard, even in the absence of proof of negligence.

How Does the Law Apply to the Current Situation?

Although dicamba has been around for decades, its use was restricted. Because of its volatility or tendency to spread uncontrollably beyond its targeted area, dicamba was not approved for post-emergent use. Because of the increasing resistance of many weeds to glyphosate (Roundup), however, manufacturers such as Monsanto, BASF, and DuPont have been working to reduce the volatility of dicamba, which is highly effective against difficult weeds. As part of their system, they developed genetically modified versions of soybeans and cotton that are dicamba tolerant. During the last year, EPA approved certain formulations of dicamba for use over the top of these dicamba resistant plants. These systems were marketed for use during the 2017 crop year.

The implementation has been less than seamless. Thousands of acres of crops are damaged due to dicamba drift, and various parties are pointing fingers. In some cases, the manufacturers are asserting that the applicators have not followed the specific instructions given for the use of this chemical or that they are using unapproved formulations of dicamba. Applicators and their insurers allege that despite using reasonable care, dicamba drifted to neighboring fields or pastures, harming crops, fruit, and trees. Some scientists contend that dicamba is prone to vaporize or turn from a liquid to a gas during warm weather, even when the label instructions are carefully followed. This vapor, they contend, can insidiously travel several miles to harm non-dicamba-resistant crops, particularly soybeans.  The farmers suffering loss are left with no easy remedy.  

Already, multiple lawsuits have been filed and many more are sure to follow.  These include class actions, as well as individual lawsuits. Much like we have seen with the Syngenta litigation, these actions will likely drag on for years. The questions are complex and facts will continue to emerge. Further regulatory action will likely ensue.

In the meantime, farmers damaged by pesticide drift should promptly contact IDALS at 515-281-8591 to initiate an investigation. They should also contact the manufacturer to report the injury. Monsanto has asked farmers to contact them at 1–844-RRXTEND immediately with reports of leaf cupping. They will send an agronomic specialist to evaluate the damaged field. Farmers facing damage should also consider hiring legal counsel to assist them in assessing their legal rights. In some cases, private settlements may be reached without resorting to a lawsuit. As the facts shake out, legal remedies may become more apparent. In the meantime, those with damage need to protect their rights by documenting and preserving evidence of their claims.  

We will continue to monitor this important issue and keep you posted!