throbber
Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 1 of 24
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`
`
`
`AMERICAN SOYBEAN ASSOCIATION
`and PLAINS COTTON GROWERS, INC.,
`
`
`Plaintiffs,
`
`
`v.
`
`
`MICHAEL S. REGAN,*
`in his official
`capacity as the Administrator of the U.S.
`Environmental
`Protection
`Agency,
`MARIETTA ECHEVERRIA, in her official
`capacity as Acting Division Director of the
`U.S. Environmental Protection Agency, Office
`of Pesticide Programs, Registration Division,
`and UNITED STATES ENVIRONMENTAL
`PROTECTION AGENCY,
`
`
`Case No. 1:20-cv-3190-RCL
`
`Defendants,
`
`
`
`
`
`
`LP, BASF
`BAYER CROPSCIENCE
`CORPORATION, and SYNGENTA CROP
`PROTECTION, LLC,
`
`
`and
`
`Intervenor-Defendants.
`
`
`ANSWER OF INTERVENOR-DEFENDANT BAYER CROPSCIENCE LP
`
`Intervenor-Defendant Bayer CropScience LP answers Plaintiffs’ Complaint for
`
`Declaratory and Injunctive Relief (ECF No. 1) as follows:
`
`INTRODUCTION
`
`1.
`
`Paragraph 1 contains Plaintiffs’ characterization of this case, which requires no
`
`response. To the extent that a response is required, Bayer admits that its registered dicamba
`
`
`* Automatically substituted pursuant to Federal Rule of Civil Procedure 25(d).
`
`
`
`

`

`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 2 of 24
`
`
`
`herbicide can be safely and effectively applied in accordance with the terms of the product label
`
`to soybean and cotton crops genetically engineered to withstand “over-the-top” applications of
`
`dicamba.
`
`2.
`
`Paragraph 2 contains Plaintiffs’ characterization of this case, which requires no
`
`response. To the extent that a response is required, Bayer admits that its dicamba herbicide and
`
`dicamba-tolerant (DT) crops are critical tools for American farmers’ efforts to combat herbicide-
`
`resistant weeds.
`
`3.
`
`Paragraph 3 contains Plaintiffs’ characterization of this case, which requires no
`
`response. To the extent that a response is required, Bayer admits that herbicide-resistant weeds
`
`can pose a substantial problem for growers in those areas where such weeds are present, and that
`
`Bayer’s DT crops and dicamba herbicide are critical tools for farmers in those areas.
`
`4.
`
`Paragraph 4 provides Plaintiffs’ description of themselves and their members.
`
`Bayer admits that Plaintiffs are cotton and soybean growers’ associations and understands that
`
`Plaintiffs’ members depend upon dicamba herbicides to ensure successful crops.
`
`5.
`
`Paragraph 5 asserts that EPA recently registered dicamba under the Federal
`
`Insecticide, Fungicide, and Rodenticide Act (FIFRA) for use on DT soybean and cotton and that
`
`EPA imposed various application and use conditions on soybean and cotton growers. Bayer admits
`
`that EPA registered dicamba for use on DT soybean and cotton on October 27, 2020, and that
`
`EPA’s registration decision imposes application and use conditions. See ECF No. 1-1.
`
`6.
`
`Paragraph 6 asserts that EPA’s registration decision will provide growers with an
`
`essential weed-management tool but that unspecified aspects of the decision are problematic for
`
`growers. Bayer admits that the EPA’s registration decision provides growers an essential weed-
`
`management tool for the 2021 season and beyond. Bayer recognizes that the EPA requirements
`
`2
`
`

`

`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 3 of 24
`
`
`
`on the labels for its dicamba herbicides impose specific conditions for use that can have impacts
`
`on farm management, but lacks knowledge or information sufficient to form a belief about the
`
`unspecified aspects of the decision addressed by this paragraph.
`
`7.
`
`Paragraph 7 asserts that certain registration conditions will reduce crop yields and
`
`productivity and increase operational costs, and that some conditions are significantly stricter than
`
`past dicamba registrations. Bayer recognizes that the EPA requirements on the labels for its
`
`dicamba herbicides impose specific conditions for use that can have impacts on farm management,
`
`but lacks knowledge or information sufficient to form a belief about unspecified aspects of the
`
`decision addressed by this paragraph.
`
`8.
`
`Paragraph 8 provides Plaintiffs’ characterization of this case and specifies the relief
`
`they seek, which requires no response.
`
`9.
`
`Paragraph 9 provides Plaintiffs’ additional characterization of this case and asserts
`
`that resolving legal uncertainties about the EPA’s registration decision is important for growers
`
`and implicates billions of dollars in investments by growers. Bayer agrees that the EPA’s
`
`registration decision “satisfies FIFRA, the ESA, and the Administrative Procedure[] Act” and
`
`admits that the decision is important for growers and implicates billions of dollars in investments.
`
`Plaintiffs’ additional characterization of this case requires no response.
`
`PARTIES
`
`10.
`
`Paragraph 10 provides Plaintiffs’ description of themselves and their members’
`
`activities. Bayer admits the allegations in this paragraph.
`
`11.
`
`Paragraph 11 provides Plaintiffs’ description of Plaintiff American Soybean
`
`Association (ASA). Bayer admits the allegations in this paragraph.
`
`12.
`
`Paragraph 12 provides Plaintiffs’ additional description of ASA. Bayer admits the
`
`allegations in this paragraph.
`
`3
`
`

`

`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 4 of 24
`
`
`
`13.
`
`Paragraph 13 provides Plaintiffs’ description of Plaintiff Plains Cotton Growers,
`
`Inc. Bayer admits that Plains Cotton Growers, Inc. is a non-profit producer organization composed
`
`of regional cotton producers but lacks knowledge or information sufficient to form a belief about
`
`the truth of the remaining assertions in paragraph 13.
`
`14.
`
`Paragraph 14 asserts that Defendant Andrew R. Wheeler is the EPA Administrator,
`
`that he is sued in his official capacity, and that he is the federal official responsible for pesticide
`
`registrations under FIFRA. Michael S. Regan was confirmed as EPA Administrator on March 11,
`
`2021. See EPA, EPA Administrator: Michael S. Regan, https://www.epa.gov/aboutepa/epa-
`
`administrator (last visited Mar. 29, 2021). Pursuant to Federal Rule of Civil Procedure 25(d),
`
`Regan thus automatically replaced Wheeler in this case. Bayer admits that EPA is the federal
`
`agency with authority to register pesticides under FIFRA, including issuing the decisions
`
`challenged here, and that the EPA Administrator is the head of EPA.
`
`15.
`
`Paragraph 15 asserts that Defendant Marietta Echeverria is Acting Division
`
`Director of EPA’s Office of Pesticide Programs, Registration Division, that she is sued in her
`
`official capacity, that she approves and administers FIFRA registrations including the decisions
`
`challenged here, and that she reports to the EPA Administrator. Bayer admits that Echeverria
`
`signed the decision document as the Acting Division Director of EPA’s Office of Pesticide
`
`Programs, Registration Division.
`
`16.
`
`Paragraph 16 asserts that Defendant EPA is an agency of the United States
`
`government, that FIFRA vests EPA with responsibility for registering pesticides, and that EPA is
`
`responsible for ensuring that pesticide registrations comply with all applicable law. These are
`
`legal conclusions that require no response.
`
`4
`
`

`

`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 5 of 24
`
`
`
`JURISDICTION AND VENUE
`
`17.
`
`Paragraph 17 states legal conclusions about subject-matter jurisdiction, which
`
`require no response.
`
`18.
`
`19.
`
`Paragraph 18 states legal conclusions about relief, which require no response.
`
`Paragraph 19 states legal conclusions about personal jurisdiction over Defendants
`
`Regan, Echeverria, and EPA, and asserts that each is “working and seated in Washington, D.C.”
`
`These legal conclusions require no response. To the extent that a response is required, Bayer
`
`admits that EPA’s headquarters are located in Washington, DC.
`
`20.
`
`Paragraph 20 states legal conclusions about venue that require no response. To the
`
`extent that a response is required, Bayer admits that relevant events underlying the registration
`
`decision occurred in Washington, DC.
`
`STATUTORY AND REGULATORY FRAMEWORK
`
`A.
`
`The Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”)
`
`21.
`
`Paragraph 21 provides Plaintiffs’ characterization of FIFRA, which requires no
`
`response. The statute speaks for itself and is in its entirety the best evidence of its content. Bayer
`
`denies any allegations that are inconsistent with the statute. Paragraph 21 also asserts that
`
`“[a]pproximately 18,000 pesticides were in use across the country as of 2012.” Bayer lacks
`
`knowledge or information sufficient to form a belief about the total quantity of pesticides in use
`
`across America in 2012.
`
`22.
`
`Paragraph 22 provides Plaintiffs’ characterization of FIFRA provisions, which
`
`requires no response. FIFRA’s provisions speak for themselves and are in their entirety the best
`
`evidence of their own content. Bayer denies any allegations inconsistent with the statute.
`
`5
`
`

`

`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 6 of 24
`
`
`
`23.
`
`Paragraph 23 provides Plaintiffs’ characterization of a FIFRA provision, which
`
`requires no response. FIFRA’s provisions speak for themselves and are in their entirety the best
`
`evidence of their own content. Bayer denies any allegations inconsistent with the statute.
`
`24.
`
`Paragraph 24 provides Plaintiffs’ characterization of a FIFRA provision, which
`
`requires no response. FIFRA’s provisions speak for themselves and are in their entirety the best
`
`evidence of their own content. Bayer denies any allegations inconsistent with the statute.
`
`25.
`
`Paragraph 25 provides legal conclusions and Plaintiffs’ characterization of FIFRA
`
`and the Administrative Procedure Act, which require no response. These statutory provisions
`
`speak for themselves and are in their entirety the best evidence of their own content. Bayer denies
`
`any allegations inconsistent with the statutes.
`
`B.
`
`The Endangered Species Act (“ESA”)
`
`26.
`
`Paragraph 26 provides Plaintiffs’ characterization of provisions of the ESA, which
`
`requires no response. The ESA’s provisions speak for themselves and are in their entirety the best
`
`evidence of their own content. Bayer denies any allegations inconsistent with the statute.
`
`27.
`
`Paragraph 27 provides Plaintiffs’ characterization of provisions of the ESA and its
`
`implementing regulations, which requires no response. These provisions of the statute and
`
`regulations speak for themselves and are in their entirety the best evidence of their own content.
`
`Bayer denies any allegations inconsistent with the statute and regulations.
`
`28.
`
`Paragraph 28 provides Plaintiffs’ characterization of the ESA implementing
`
`regulations, which requires no response. These regulations speak for themselves and are in their
`
`entirety the best evidence of their own content. Bayer denies any allegations inconsistent with the
`
`regulations.
`
`29.
`
`Paragraph 29 provides Plaintiffs’ characterization of provisions of the ESA and its
`
`implementing regulations, which requires no response. These provisions speak for themselves and
`
`6
`
`

`

`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 7 of 24
`
`
`
`are in their entirety the best evidence of their own content. Bayer denies any allegations
`
`inconsistent with the statute and regulations.
`
`30.
`
`Paragraph 30 provides Plaintiffs’ characterization of the ESA implementing
`
`regulations, which requires no response. These regulations speak for themselves and are in their
`
`entirety the best evidence of their own content. Bayer denies any allegations inconsistent with the
`
`regulations.
`
`FACTUAL BACKGROUND
`
`31.
`
`Paragraph 31 provides Plaintiffs’ characterization of this case, which requires no
`
`response, and gives Plaintiffs’ characterization of the EPA’s registration decisions, which speak
`
`for themselves and are in their entirety the best evidence of their own content. Bayer denies any
`
`allegations inconsistent with the decisions and documents referenced.
`
`32.
`
`Paragraph 32 provides Plaintiffs’ summary and characterization of EPA documents
`
`and analyses, which speak for themselves and are in their entirety the best evidence of their own
`
`content. Bayer denies any allegations inconsistent with those determinations, assessments,
`
`analyses, and other materials.
`
`33.
`
`Paragraph 33 asserts that soybean and cotton underpin the U.S. agricultural sector,
`
`that herbicide-resistant weeds threaten soybean and cotton farms across the country, and that
`
`dicamba is a critical tool in growers’ efforts to eliminate these weeds. Bayer admits that soybeans
`
`and cotton are critical components of the U.S. agricultural sector and that dicamba is a critical tool
`
`for growers combatting herbicide-resistant weeds.
`
`34.
`
`Paragraph 34 alleges that EPA’s recent decision to register dicamba gave growers
`
`a crucial weed-management tool, that growers rely on reasonable and consistent access to dicamba,
`
`and that the registration’s “spatial- and temporal-use conditions” will undermine dicamba’s
`
`benefits. Bayer admits that EPA’s registration decision arms growers with an essential weed-
`
`7
`
`

`

`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 8 of 24
`
`
`
`management tool for the 2021 growing season and beyond. Bayer denies the remaining allegations
`
`of this paragraph.
`
`35.
`
`Paragraph 35 consists of Plaintiffs’ characterization of their case and requires no
`
`response. To the extent that a response is required, Bayer denies the allegations in paragraph 35.
`
`A.
`
`U.S. Soybean
`
`36.
`
`Paragraph 36 generally asserts that soybeans are important and have myriad uses
`
`in today’s society. Bayer admits the assertions in paragraph 36.
`
`37.
`
`Paragraph 37 purports to summarize documents from the U.S. Department of
`
`Agriculture (USDA), which speak for themselves and are in their entirety the best evidence of their
`
`content.
`
`38.
`
`Paragraph 38 provides additional allegations about soybeans’ importance to
`
`society. Bayer admits that soybeans are a cornerstone of America’s agricultural economy, but
`
`lacks knowledge or information sufficient to form a belief about the specific statistics cited in
`
`paragraph 38.
`
`39.
`
`Paragraph 39 alleges that soybean sales are a key driver of the U.S. farm economy
`
`and that domestic soybean crop value exceeded $34 billion last year. Bayer admits that soybean
`
`sales are a key driver of the U.S. farm economy, but lacks knowledge or information sufficient to
`
`form a belief about the specific statistics cited in paragraph 39.
`
`40.
`
`Paragraph 40 provides allegations about American soybeans’ importance to the
`
`global agricultural market and cites statistics regarding soybean exports. Bayer admits that
`
`soybeans are a major player in the global agricultural market, but lacks knowledge or information
`
`sufficient to form a belief about the specific statistics cited in paragraph 40.
`
`41.
`
`Paragraph 41 provides allegations about American soybeans’ role in domestic and
`
`international diets. Bayer admits that American soybeans are an international and domestic dietary
`
`8
`
`

`

`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 9 of 24
`
`
`
`staple, but lacks knowledge or information sufficient to form a belief about the specific allegations
`
`made in paragraph 41.
`
`42.
`
`Paragraph 42 provides allegations about the United States’ history of providing
`
`soybeans and soy-fortified foods to developing countries. Bayer admits that the United States has
`
`a long history of providing soybeans and soy-fortified foods to developing countries for emergency
`
`and development assistance.
`
`43.
`
`Paragraph 43 provides additional allegations about soybeans’ importance to the
`
`food supply chain and asserts that American soybean farmers depend on dicamba and DT
`
`soybeans. Bayer admits that American soybean farmers rely on dicamba and DT soybeans and
`
`that such products are important to the international agricultural economy.
`
`B.
`
`U.S. Cotton
`
`44.
`
`Paragraph 44 provides allegations regarding cotton’s importance as an important
`
`cash crop and key fiber. Bayer admits that cotton is an important cash crop to the domestic and
`
`global textile trade. Paragraph 44 also cites data and documents from the USDA, which speak for
`
`themselves and are in their entirety the best evidence of their content.
`
`45.
`
`Paragraph 45 provides additional allegations about cotton growers’ contributions
`
`to the American economy. Bayer admits that the contribution of cotton growers to the U.S.
`
`economy is very significant. Paragraph 45 also cites data and documents from the USDA, which
`
`speak for themselves and are in their entirety the best evidence of their content.
`
`46.
`
`Paragraph 46 provides additional allegations about cotton production in the Texas
`
`High Plains. Bayer admits that Texas High Plains produces a significant volume of cotton
`
`annually, but lacks knowledge or information sufficient to form a belief about the specific statistics
`
`provided in paragraph 46.
`
`9
`
`

`

`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 10 of 24
`
`
`
`47.
`
`Paragraph 47 provides additional allegations about cotton growers’ contributions
`
`to the American economy. Bayer recognizes that cotton growers are responsible for significant
`
`domestic economic activity, but lacks knowledge or information sufficient to form a belief about
`
`the specific statistics cited in paragraph 47.
`
`48.
`
`Paragraph 48 provides allegations about the United States’ role in the global cotton
`
`market. Bayer admits that the United States is an internationally important cotton producer and
`
`exporter, but lacks knowledge or information sufficient to form a belief about the specific statistics
`
`cited in paragraph 48.
`
`49.
`
`Paragraph 49 cites data and documents from the USDA, which speak for
`
`themselves and are in their entirety the best evidence of their content.
`
`50.
`
`Paragraph 50 cites data and documents from the USDA, which speak for
`
`themselves and are in their entirety the best evidence of their content.
`
`51.
`
`Paragraph 51 cites data and documents from the USDA, which speak for
`
`themselves and are in their entirety the best evidence of their content.
`
`52.
`
`Paragraph 52 asserts that cotton farmers depend on dicamba and DT cotton. Bayer
`
`admits these allegations.
`
`C.
`
`The Rise of Herbicide-Resistant Weeds and Growers’ Answer: Dicamba
`
`53.
`
`Paragraph 53 provides Plaintiffs’ explanation, based on various sources and figures,
`
`that soybeans and cotton form the backbone of the American farm economy. Bayer generally
`
`admits that soybeans and cotton are leading and important crops. Paragraph 53 also purports to
`
`summarize data and documents from the USDA, which speak for themselves and are in their
`
`entirety the best evidence of their content.
`
`10
`
`

`

`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 11 of 24
`
`
`
`i.
`
`54.
`
`Growers’ Fight Against Weeds
`
`Paragraph 54 asserts that American soybean and cotton farmers face myriad threats
`
`to their livelihood. Bayer admits that each of the factors cited can threaten soybean and cotton
`
`farmers’ livelihoods.
`
`55.
`
`Paragraph 55 asserts that weeds pose a particularly dire threat to soybean and cotton
`
`growers and explains why. Bayer admits that weeds can pose a significant threat to soybean and
`
`cotton crops.
`
`56.
`
`Paragraph 56 provides additional allegations about why weeds are a major threat to
`
`soybeans and the vital role herbicides play in safeguarding weeds. Bayer admits that weeds can
`
`pose a significant threat to soybeans and that herbicides play a vital role in protecting crops against
`
`weeds.
`
`57.
`
`Paragraph 57 provides additional allegations about why weeds are a major threat to
`
`cotton and the role DT seeds have played in protecting crop yields. Bayer admits that weeds pose
`
`a significant threat to cotton and that DT seeds and dicamba play a vital role in protecting crops
`
`against weeds. Paragraph 57 also cites data and documents from the National Cotton Council,
`
`which speak for themselves and are in their entirety the best evidence of their content.
`
`ii.
`
`58.
`
`The Emergence of Glyphosate-Resistant Weeds
`
`Paragraph 58 provides Plaintiffs’ explanation of how the development of herbicide-
`
`resistant crops in the mid-1990s substantially improved farming for growers. To the extent these
`
`general characterizations require a response, Bayer admits that the development of herbicide-
`
`resistant crop greatly improved weed-management.
`
`59.
`
`Paragraph 59 alleges that these developments revolutionized weed-management
`
`and provided myriad benefits to farmers, consumers, and the environment. Bayer admits these
`
`allegations.
`
`11
`
`

`

`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 12 of 24
`
`
`
`60.
`
`Paragraph 60 alleges that farmers and customers substantially benefited from the
`
`development of herbicide-resistant crops. Bayer admits these allegations.
`
`61.
`
`Paragraph 61 provides Plaintiffs’ description of growers’ weed-management
`
`practices before herbicide-resistant crops were developed and Plaintiffs’ allegations about why
`
`those developments yielded substantial benefits to farmers. Paragraph 61 also purports to
`
`summarize documents from the USDA, which speak for themselves and are in their entirety the
`
`best evidence of their content. Bayer generally admits that the development of herbicide-resistant
`
`crops yielded substantial benefits and savings to farmers.
`
`62.
`
`Paragraph 62 asserts that the development of herbicide-resistant crops provided
`
`environmental benefits as well. Bayer generally admits that the development of herbicide-resistant
`
`crops yielded substantial environmental benefits. Paragraph 62 also cites data and documents from
`
`the Keystone Alliance for Sustainable Agriculture, which speak for themselves and are in their
`
`entirety the best evidence of their content.
`
`63.
`
`Paragraph 63 cites data and documents from the USDA, which speak for
`
`themselves and are in their entirety the best evidence of their content.
`
`iii.
`
`64.
`
`The Emergence of Glyphosate-Resistant Weeds
`
`Paragraph 64 provides Plaintiffs’ description of the emergence of herbicide-
`
`resistant weeds and the problems they pose to soybean and cotton farmers. Bayer admits that
`
`glyphosate-resistant weeds pose serious problems to soybean and cotton growers.
`
`65.
`
`Paragraph 65 describes the types of common herbicide-resistant weeds and their
`
`increasing prevalence. Paragraph 65 also purports to summarize documents from the USDA,
`
`which speak for themselves and are in their entirety the best evidence of their content. Bayer
`
`admits that pigweed, ragweed, horseweed, kochia, waterhemp, goosegrass, Italian ryegrass, and
`
`12
`
`

`

`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 13 of 24
`
`
`
`Johnsongrass are among the weed species with populations confirmed to have glyphosate-
`
`resistance in certain locations.
`
`66.
`
`Paragraph 66 provides additional allegations about how devastating herbicide-
`
`resistant weeds are to crops. Bayer admits that a single Palmer amaranth plant can produce a
`
`significant number of seeds and that Palmer amaranth can be a substantial problem for growers.
`
`67.
`
`Paragraph 67 describes the effects on growers from the emergence of herbicide-
`
`resistant weeds and cites data and documents from the USDA, which speak for themselves and are
`
`in their entirety the best evidence of their content.
`
`68.
`
`Paragraph 68 summarizes data and documents from the USDA, which speak for
`
`themselves and are in their entirety the best evidence of their content.
`
`iv.
`
`69.
`
`Dicamba: Growers’ Answer to Glyphosate-Resistant Weeds
`
`Paragraph 69 asserts that dicamba-based herbicides and DT crops were developed
`
`to address the issues from herbicide-resistant weeds. Bayer admits these allegations.
`
`70.
`
`Bayer admits that ABN Tavium Plus VaporGrip Technology is produced by
`
`Syngenta, that Engenia Herbicide is produced by BASF, and that XtendiMax with VaporGrip
`
`Technology is produced by Bayer. Bayer also admits that all three products are dicamba-based
`
`herbicides.
`
`71.
`
`Paragraph 71 asserts that dicamba herbicides effectively counter herbicide-resistant
`
`weeds and explains how these products work. Bayer admits these allegations.
`
`72.
`
`Paragraph 72 explains that dicamba and DT crops offer significant benefits over
`
`other herbicides, including the ability to apply dicamba during the growing season, which provides
`
`longer and better protection against weeds. Bayer admits these allegations.
`
`13
`
`

`

`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 14 of 24
`
`
`
`73.
`
`Paragraph 73 asserts that dicamba products also promise to delay development of
`
`more herbicide-resistant weeds, quoting USDA. Bayer admits that dicamba could be used to delay
`
`resistance development, as USDA recognized in 2014.
`
`74.
`
`Paragraph 74 consists of allegations regarding growers’ use of dicamba and DT
`
`crops. Bayer acknowledges that many growers have benefited substantially from using its DT
`
`crops and dicamba-herbicide products.
`
`75.
`
`Paragraph 75 asserts that soybean and cotton growers have invested billions into
`
`DT crops and dicamba in recent years in light of their effectiveness. Bayer admits that it has sold
`
`DT seeds and dicamba herbicide for use on millions of acres of cropland and that many growers
`
`have utilized these products.
`
`76.
`
`Paragraph 76 asserts that, without dicamba, farms would be largely defenseless
`
`against weeds as there are few other herbicides and most are only partially effective. Bayer admits
`
`that its dicamba herbicide, when used in accordance with its product labels, provide a critical and
`
`necessary solution for weed issues faced by soybean and cotton growers.
`
`77.
`
`Paragraph 77 asserts that, without an effective herbicide, growers would have to
`
`resort to hand-weeding, and explains that hand-weeding is exorbitantly expensive, arduous to
`
`implement, and impractical on large scale. Bayer admits the allegations regarding the limitations
`
`of hand-weeding.
`
`78.
`
`Paragraph 78 asserts that removing dicamba would also expedite the emergence of
`
`other herbicide-resistant weeds and that this would further frustrate weed prevention. Bayer
`
`admits that the loss of dicamba may increase the rate at which other herbicide-resistant weeds will
`
`develop.
`
`14
`
`

`

`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 15 of 24
`
`
`
`79.
`
`Paragraph 79 asserts that American soybean and cotton farmers depend on dicamba
`
`to protect their crops, which in turn let them provide food, fuel, and clothes to society. Bayer
`
`admits these allegations.
`
`D.
`
`The Dicamba Decision and its Application Restrictions
`
`80.
`
`Paragraph 80 asserts that EPA registered the dicamba products on October 27,
`
`2020, and gives Plaintiffs’ characterization of the registration decision, which speaks for itself and
`
`is in its entirety the best evidence of its own content.
`
`i.
`
`81.
`
`EPA’s Latest Dicamba Registration
`
`Paragraph 81 asserts that EPA has repeatedly analyzed and authorized over-the-top
`
`application of dicamba since 2016, including in October 2020. Bayer admits these allegations.
`
`82.
`
`Paragraph 82 provides Plaintiffs’ characterization of EPA documents, which speak
`
`for themselves and are in their entirety the best evidence of their own content.
`
`83.
`
`Paragraph 83 provides Plaintiffs’ characterization of this case, which requires no
`
`response, and includes Plaintiffs’ discussion of the dicamba registration decisions, which speak
`
`for themselves and are in their entirety the best evidence of their own content.
`
`84.
`
`Paragraph 84 consists of Plaintiffs’ characterization of additional EPA documents,
`
`which speak for themselves and are in their entirety the best evidence of their own content.
`
`85.
`
`Paragraph 85 consists of Plaintiffs’ characterization of additional EPA documents,
`
`which speak for themselves and are in their entirety the best evidence of their own content.
`
`86.
`
`Paragraph 86 consists of Plaintiffs’ characterizations of EPA’s analyses and various
`
`EPA documents, which speak for themselves and are in their entirety the best evidence of their
`
`own content. Bayer denies any allegations inconsistent with such documentation.
`
`15
`
`

`

`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 16 of 24
`
`
`
`87.
`
`Paragraph 87 consists of Plaintiffs’ further characterizations of EPA’s analyses and
`
`various EPA documents, which speak for themselves and are in their entirety the best evidence of
`
`their own content. Bayer denies any allegations inconsistent with that documentation.
`
`88.
`
`Paragraph 88 provides Plaintiffs’ further characterizations of their case and the
`
`dicamba registration decision and conditions. These assertions require no response and the EPA
`
`decision and conditions speak for themselves and are in their entirety the best evidence of their
`
`own content. Bayer denies any allegations inconsistent with the documentation identified.
`
`89.
`
`Paragraph 89 asserts that growers wrote letters to EPA about dicamba registration
`
`conditions and provides those letters as exhibits. Bayer admits that growers provided letters to
`
`EPA. Those letters speak for themselves and are the best evidence of their own content.
`
`90.
`
`Paragraph 90 characterizes the conditions in EPA’s dicamba registration decision.
`
`EPA’s decisions and conditions speak for themselves and are in their entirety the best evidence of
`
`their own content. Bayer admits that the new conditions are generally more restrictive than in past
`
`dicamba registrations.
`
`ii.
`
`91.
`
`The Application Restrictions
`
`Paragraph 91 characterizes EPA’s dicamba registration decision. EPA’s decisions
`
`and conditions speak for themselves and are in their entirety the best evidence of their own content.
`
`Bayer denies any allegations inconsistent with the relevant EPA documentation. Paragraph 91
`
`also includes Plaintiffs’ assertion that that these restrictions will be detrimental to growers. Bayer
`
`admits that the dicamba labels contain new and additional EPA restrictions that may result in
`
`certain limitations on spraying or certain operational costs for certain growers, in certain
`
`circumstances.
`
`92.
`
`Paragraph 92 provides Plaintiffs’ further assertions regarding the impacts of
`
`application restrictions on Plaintiffs’ members. Bayer admits that EPA’s restrictions could, in
`
`16
`
`

`

`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 17 of 24
`
`
`
`certain circumstances, have certain impacts on farm management, but Bayer lacks sufficient
`
`information on the assumptions underlying the statements in this paragraph to categorize and
`
`respond regarding all potential “unforeseeable conditions.”
`
`93.
`
`Paragraph 93 consists of Plaintiffs’ further assertions regarding the possible future
`
`impacts of application restrictions on Plaintiffs’ members. Bayer admits that growers need weed
`
`control options during cultivation of their cotton fields and that EPA has required application-date
`
`cutoff restrictions on the labels of the dicamba herbicides.
`
`94.
`
`Paragraph 94 consists of Plaintiffs’ further assertions regarding the potential
`
`impacts of application restrictions on Plaintiffs’ members. Bayer admits that cotton growers have
`
`a need for weed control options during cultivation of their cotton fields, and that EPA has required
`
`application-date cutoff restrictions on the labels of the dicamba herbicides.
`
`95.
`
`Paragraph 95 provides Plaintiffs’ characterizations and assertions regarding the
`
`potential effects of the application restrictions on particular regions and growers. Bayer admits
`
`that cotton growers need weed control options during cultivation of their cotton fields, and that
`
`EPA has required application-date cutoff restrictions on the labels of the dicamba herbicides.
`
`96.
`
`Paragraph 96 provides Plaintiffs’ characterizations and assertions regarding the
`
`effects of the application restrictions on particular regions and growers. Bayer admits that cotton
`
`growers need weed control options during cultivation of their cotton fields, and that EPA has
`
`required application-date cutoff restrictions on the labels of the dicamba herbicides.
`
`97.
`
`Paragraph 97 provides Plaintiffs’ characterizations of the application restrictions
`
`a

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket