WILL REGULATORS CATCH THE DRIFT? NFFC V. EPA AND BREATHING NEW LIFE INTO PESTICIDE REGULATION

In the past half-century, U.S. agriculture has become dramatically more industrialized, consolidated, and bifurcated between livestock and crop agriculture, resulting in significant negative environmental, health, and socioeconomic effects. One pillar propping up this unsustainable industrial model is heavy reliance on synthetic pesticides and fertilizers, chemical inputs necessary for large monoculture production. In the most recent twenty-first-century version of this ever-entrenching paradigm, pesticide companies sell a seed/pesticide cropping system, comprised of crops genetically engineered (GE) to resist multiple pesticides, allowing “over the top” spraying at new times of the year and in new ways. These crop systems have significantly increased the pesticide load on our foods and into our environment, creating huge externalized environmental and health costs. Pesticides are toxic substances intended to harm or kill. Yet, stakeholders best characterize current federal pesticide regulation under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) not by its rigor but by its weaknesses and loopholes. The U.S. Environmental Protection Agency (EPA), charged with administering FIFRA, increasingly approves new uses and variations of pesticides without fully taking into account the consequences these chemical cocktails have on public health, farmers, and our most imperiled species. This includes conditionally approving pesticides despite lacking vital data showing their safety and limiting the scope of agency review when it is applied. When EPA chooses to bend to the whim of powerful agrochemical corporations instead of truly evaluating the potential risks, environmentalists, farmers, and farmworker groups often turn to the courts to challenge EPA’s pesticide approvals. A recent case, National Family Farm Coalition v. EPA (NFFC), 960 F. 3d 1120 (9th Cir. 2020), presented these issues in stark relief. Dicamba (3,6-dichloro-2-methoxybenzoic acid) is a broad-spectrum herbicide. Dicamba is an effective weed killer, but its toxicity is not limited to weeds. It can also kill many desirable broadleaf plants, bushes, and trees. And it has a well-known drawback: dicamba is volatile, moving easily off a field on which a farmer has sprayed it. As a result of its toxicity and its tendency to drift, dicamba has historically been limited to clearing fields of weeds, either before crops were planted or before newly planted crops emerged. This changed in 2016: