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What happens when farming, law and policy meet?

The study of law in agriculture is often a fascinating blend of farming, policy and law. Recently there has been a lot of this going on with regard to the use of dicamba herbicide.

Several years ago, glyphosate-resistant crops were developed. This began the "Roundup Ready" era of farming, whereby glyphosate could be applied on corn, soybeans and other crops. All of a sudden, weed control was a lot easier than it used to be.

After several years of repetitive applications of glyphosate, farmers began to notice that certain weeds were becoming "Roundup resistant," and couldn't be as easily controlled by glyphosate. One possible remedy for this was to incorporate different crops into a rotation. Another possible remedy was to use different chemicals — other than glyphosate — to control weeds.

Flash forward to the past couple of years. The "Xtend" varieties of commodities entered the market. These crops — let's use soybeans as an example — were genetically engineered to be resistant to dicamba, which is a herbicide that has been around for several years.

Now, farmers who know their herbicides are well aware that dicamba — like any herbicide — has certain traits. In fact, I know someone who uses dicamba in his yard to control a weed called "black medic." Black medic is a pervasive weed, and basic 2-4D doesn't do much to control black medic. However, dicamba works well on it.

What's the downside to dicamba? Ask any farmer and they'll tell you that it tends to "heat up" in warm conditions. Long story short, dicamba does a terrific job of killing weeds, but it also does a terrific job of killing trees and other plants that you may not mean to be killing. This is also called "non-target crop damage."

How do you remedy that problem? Well, in your yard you might wait until the first frost is predicted, and since the trees are going dormant, you then spray the herbicide. It won't heat up and move, and if it DOES, the trees are dormant anyway and not susceptible to damage.

But that isn't helpful for crop spraying. Soybeans are sprayed in July, well before the first frost. Most farmers spray dicamba only when the wind is favorable and only when the temperatures and other weather conditions are favorable as well.

The development of Xtend varieties of crops has been controversial for farmers, as it has resulted in several instances of damage to "non-target crops." This has resulted in a spike in insurance claims and also in a spike in litigation related to dicamba damage.

Recently the Environmental Protection Agency stepped in. Yes, the federal government decided they were going to get involved in the crop damage industry. The EPA reached an agreement with manufacturers of dicamba to further minimize the potential for drift to non-target crops resulting from use of dicamba in Xtend soybeans and cotton. They did so with extensive input from states and the U.S. Department of Agriculture, as well as extension agents across the country. The EPA is touting it as "an example of cooperative federalism leading to workable national level solutions."

The entire press release can be found at https://www.epa.gov/pesticides/epa-and-states-collective-efforts-lead-re.... The highlights of the change are that newer dicamba formulations are now going to be classified as "restricted use," which permits only certain applicators with special training to apply these formulations. The regulations also require farmers to amp up their record keeping systems pertaining to dicamba application and to limit spraying to times when wind and weather conditions are favorable.

There are two sides to every issue. With this issue, a skeptic will assert that the EPA didn't need to get involved to force farmers to be responsible about spraying dicamba. And a proponent will applaud the federal government's efforts to remedy the issue. No matter which side you're on, there's no denying how interesting it can be when farming, law and policy meet.

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