Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 1 of 24
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`
`
`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
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`Declaratory and Injunctive Relief (ECF No. 1) as follows:
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`INTRODUCTION
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`1.
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`Paragraph 1 contains Plaintiffs’ characterization of this case, which requires no
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`response. To the extent that a response is required, Bayer admits that its registered dicamba
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`* Automatically substituted pursuant to Federal Rule of Civil Procedure 25(d).
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`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 2 of 24
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`herbicide can be safely and effectively applied in accordance with the terms of the product label
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`to soybean and cotton crops genetically engineered to withstand “over-the-top” applications of
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`dicamba.
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`2.
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`Paragraph 2 contains Plaintiffs’ characterization of this case, which requires no
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`response. To the extent that a response is required, Bayer admits that its dicamba herbicide and
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`dicamba-tolerant (DT) crops are critical tools for American farmers’ efforts to combat herbicide-
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`resistant weeds.
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`3.
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`Paragraph 3 contains Plaintiffs’ characterization of this case, which requires no
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`response. To the extent that a response is required, Bayer admits that herbicide-resistant weeds
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`can pose a substantial problem for growers in those areas where such weeds are present, and that
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`Bayer’s DT crops and dicamba herbicide are critical tools for farmers in those areas.
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`4.
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`Paragraph 4 provides Plaintiffs’ description of themselves and their members.
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`Bayer admits that Plaintiffs are cotton and soybean growers’ associations and understands that
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`Plaintiffs’ members depend upon dicamba herbicides to ensure successful crops.
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`5.
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`Paragraph 5 asserts that EPA recently registered dicamba under the Federal
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`Insecticide, Fungicide, and Rodenticide Act (FIFRA) for use on DT soybean and cotton and that
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`EPA imposed various application and use conditions on soybean and cotton growers. Bayer admits
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`that EPA registered dicamba for use on DT soybean and cotton on October 27, 2020, and that
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`EPA’s registration decision imposes application and use conditions. See ECF No. 1-1.
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`6.
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`Paragraph 6 asserts that EPA’s registration decision will provide growers with an
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`essential weed-management tool but that unspecified aspects of the decision are problematic for
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`growers. Bayer admits that the EPA’s registration decision provides growers an essential weed-
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`management tool for the 2021 season and beyond. Bayer recognizes that the EPA requirements
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`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 3 of 24
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`on the labels for its dicamba herbicides impose specific conditions for use that can have impacts
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`on farm management, but lacks knowledge or information sufficient to form a belief about the
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`unspecified aspects of the decision addressed by this paragraph.
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`7.
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`Paragraph 7 asserts that certain registration conditions will reduce crop yields and
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`productivity and increase operational costs, and that some conditions are significantly stricter than
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`past dicamba registrations. Bayer recognizes that the EPA requirements on the labels for its
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`dicamba herbicides impose specific conditions for use that can have impacts on farm management,
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`but lacks knowledge or information sufficient to form a belief about unspecified aspects of the
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`decision addressed by this paragraph.
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`8.
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`Paragraph 8 provides Plaintiffs’ characterization of this case and specifies the relief
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`they seek, which requires no response.
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`9.
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`Paragraph 9 provides Plaintiffs’ additional characterization of this case and asserts
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`that resolving legal uncertainties about the EPA’s registration decision is important for growers
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`and implicates billions of dollars in investments by growers. Bayer agrees that the EPA’s
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`registration decision “satisfies FIFRA, the ESA, and the Administrative Procedure[] Act” and
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`admits that the decision is important for growers and implicates billions of dollars in investments.
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`Plaintiffs’ additional characterization of this case requires no response.
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`PARTIES
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`10.
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`Paragraph 10 provides Plaintiffs’ description of themselves and their members’
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`activities. Bayer admits the allegations in this paragraph.
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`11.
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`Paragraph 11 provides Plaintiffs’ description of Plaintiff American Soybean
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`Association (ASA). Bayer admits the allegations in this paragraph.
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`12.
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`Paragraph 12 provides Plaintiffs’ additional description of ASA. Bayer admits the
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`allegations in this paragraph.
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`3
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`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 4 of 24
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`13.
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`Paragraph 13 provides Plaintiffs’ description of Plaintiff Plains Cotton Growers,
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`Inc. Bayer admits that Plains Cotton Growers, Inc. is a non-profit producer organization composed
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`of regional cotton producers but lacks knowledge or information sufficient to form a belief about
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`the truth of the remaining assertions in paragraph 13.
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`14.
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`Paragraph 14 asserts that Defendant Andrew R. Wheeler is the EPA Administrator,
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`that he is sued in his official capacity, and that he is the federal official responsible for pesticide
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`registrations under FIFRA. Michael S. Regan was confirmed as EPA Administrator on March 11,
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`2021. See EPA, EPA Administrator: Michael S. Regan, https://www.epa.gov/aboutepa/epa-
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`administrator (last visited Mar. 29, 2021). Pursuant to Federal Rule of Civil Procedure 25(d),
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`Regan thus automatically replaced Wheeler in this case. Bayer admits that EPA is the federal
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`agency with authority to register pesticides under FIFRA, including issuing the decisions
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`challenged here, and that the EPA Administrator is the head of EPA.
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`15.
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`Paragraph 15 asserts that Defendant Marietta Echeverria is Acting Division
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`Director of EPA’s Office of Pesticide Programs, Registration Division, that she is sued in her
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`official capacity, that she approves and administers FIFRA registrations including the decisions
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`challenged here, and that she reports to the EPA Administrator. Bayer admits that Echeverria
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`signed the decision document as the Acting Division Director of EPA’s Office of Pesticide
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`Programs, Registration Division.
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`16.
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`Paragraph 16 asserts that Defendant EPA is an agency of the United States
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`government, that FIFRA vests EPA with responsibility for registering pesticides, and that EPA is
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`responsible for ensuring that pesticide registrations comply with all applicable law. These are
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`legal conclusions that require no response.
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`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 5 of 24
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`JURISDICTION AND VENUE
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`17.
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`Paragraph 17 states legal conclusions about subject-matter jurisdiction, which
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`require no response.
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`18.
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`19.
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`Paragraph 18 states legal conclusions about relief, which require no response.
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`Paragraph 19 states legal conclusions about personal jurisdiction over Defendants
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`Regan, Echeverria, and EPA, and asserts that each is “working and seated in Washington, D.C.”
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`These legal conclusions require no response. To the extent that a response is required, Bayer
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`admits that EPA’s headquarters are located in Washington, DC.
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`20.
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`Paragraph 20 states legal conclusions about venue that require no response. To the
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`extent that a response is required, Bayer admits that relevant events underlying the registration
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`decision occurred in Washington, DC.
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`STATUTORY AND REGULATORY FRAMEWORK
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`A.
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`The Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”)
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`21.
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`Paragraph 21 provides Plaintiffs’ characterization of FIFRA, which requires no
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`response. The statute speaks for itself and is in its entirety the best evidence of its content. Bayer
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`denies any allegations that are inconsistent with the statute. Paragraph 21 also asserts that
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`“[a]pproximately 18,000 pesticides were in use across the country as of 2012.” Bayer lacks
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`knowledge or information sufficient to form a belief about the total quantity of pesticides in use
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`across America in 2012.
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`22.
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`Paragraph 22 provides Plaintiffs’ characterization of FIFRA provisions, which
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`requires no response. FIFRA’s provisions speak for themselves and are in their entirety the best
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`evidence of their own content. Bayer denies any allegations inconsistent with the statute.
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`23.
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`Paragraph 23 provides Plaintiffs’ characterization of a FIFRA provision, which
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`requires no response. FIFRA’s provisions speak for themselves and are in their entirety the best
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`evidence of their own content. Bayer denies any allegations inconsistent with the statute.
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`24.
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`Paragraph 24 provides Plaintiffs’ characterization of a FIFRA provision, which
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`requires no response. FIFRA’s provisions speak for themselves and are in their entirety the best
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`evidence of their own content. Bayer denies any allegations inconsistent with the statute.
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`25.
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`Paragraph 25 provides legal conclusions and Plaintiffs’ characterization of FIFRA
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`and the Administrative Procedure Act, which require no response. These statutory provisions
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`speak for themselves and are in their entirety the best evidence of their own content. Bayer denies
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`any allegations inconsistent with the statutes.
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`B.
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`The Endangered Species Act (“ESA”)
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`26.
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`Paragraph 26 provides Plaintiffs’ characterization of provisions of the ESA, which
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`requires no response. The ESA’s provisions speak for themselves and are in their entirety the best
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`evidence of their own content. Bayer denies any allegations inconsistent with the statute.
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`27.
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`Paragraph 27 provides Plaintiffs’ characterization of provisions of the ESA and its
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`implementing regulations, which requires no response. These provisions of the statute and
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`regulations speak for themselves and are in their entirety the best evidence of their own content.
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`Bayer denies any allegations inconsistent with the statute and regulations.
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`28.
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`Paragraph 28 provides Plaintiffs’ characterization of the ESA implementing
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`regulations, which requires no response. These regulations speak for themselves and are in their
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`entirety the best evidence of their own content. Bayer denies any allegations inconsistent with the
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`regulations.
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`29.
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`Paragraph 29 provides Plaintiffs’ characterization of provisions of the ESA and its
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`implementing regulations, which requires no response. These provisions speak for themselves and
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`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 7 of 24
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`are in their entirety the best evidence of their own content. Bayer denies any allegations
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`inconsistent with the statute and regulations.
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`30.
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`Paragraph 30 provides Plaintiffs’ characterization of the ESA implementing
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`regulations, which requires no response. These regulations speak for themselves and are in their
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`entirety the best evidence of their own content. Bayer denies any allegations inconsistent with the
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`regulations.
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`FACTUAL BACKGROUND
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`31.
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`Paragraph 31 provides Plaintiffs’ characterization of this case, which requires no
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`response, and gives Plaintiffs’ characterization of the EPA’s registration decisions, which speak
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`for themselves and are in their entirety the best evidence of their own content. Bayer denies any
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`allegations inconsistent with the decisions and documents referenced.
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`32.
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`Paragraph 32 provides Plaintiffs’ summary and characterization of EPA documents
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`and analyses, which speak for themselves and are in their entirety the best evidence of their own
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`content. Bayer denies any allegations inconsistent with those determinations, assessments,
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`analyses, and other materials.
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`33.
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`Paragraph 33 asserts that soybean and cotton underpin the U.S. agricultural sector,
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`that herbicide-resistant weeds threaten soybean and cotton farms across the country, and that
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`dicamba is a critical tool in growers’ efforts to eliminate these weeds. Bayer admits that soybeans
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`and cotton are critical components of the U.S. agricultural sector and that dicamba is a critical tool
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`for growers combatting herbicide-resistant weeds.
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`34.
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`Paragraph 34 alleges that EPA’s recent decision to register dicamba gave growers
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`a crucial weed-management tool, that growers rely on reasonable and consistent access to dicamba,
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`and that the registration’s “spatial- and temporal-use conditions” will undermine dicamba’s
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`benefits. Bayer admits that EPA’s registration decision arms growers with an essential weed-
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`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 8 of 24
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`management tool for the 2021 growing season and beyond. Bayer denies the remaining allegations
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`of this paragraph.
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`35.
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`Paragraph 35 consists of Plaintiffs’ characterization of their case and requires no
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`response. To the extent that a response is required, Bayer denies the allegations in paragraph 35.
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`A.
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`U.S. Soybean
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`36.
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`Paragraph 36 generally asserts that soybeans are important and have myriad uses
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`in today’s society. Bayer admits the assertions in paragraph 36.
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`37.
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`Paragraph 37 purports to summarize documents from the U.S. Department of
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`Agriculture (USDA), which speak for themselves and are in their entirety the best evidence of their
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`content.
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`38.
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`Paragraph 38 provides additional allegations about soybeans’ importance to
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`society. Bayer admits that soybeans are a cornerstone of America’s agricultural economy, but
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`lacks knowledge or information sufficient to form a belief about the specific statistics cited in
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`paragraph 38.
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`39.
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`Paragraph 39 alleges that soybean sales are a key driver of the U.S. farm economy
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`and that domestic soybean crop value exceeded $34 billion last year. Bayer admits that soybean
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`sales are a key driver of the U.S. farm economy, but lacks knowledge or information sufficient to
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`form a belief about the specific statistics cited in paragraph 39.
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`40.
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`Paragraph 40 provides allegations about American soybeans’ importance to the
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`global agricultural market and cites statistics regarding soybean exports. Bayer admits that
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`soybeans are a major player in the global agricultural market, but lacks knowledge or information
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`sufficient to form a belief about the specific statistics cited in paragraph 40.
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`41.
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`Paragraph 41 provides allegations about American soybeans’ role in domestic and
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`international diets. Bayer admits that American soybeans are an international and domestic dietary
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`staple, but lacks knowledge or information sufficient to form a belief about the specific allegations
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`made in paragraph 41.
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`42.
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`Paragraph 42 provides allegations about the United States’ history of providing
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`soybeans and soy-fortified foods to developing countries. Bayer admits that the United States has
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`a long history of providing soybeans and soy-fortified foods to developing countries for emergency
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`and development assistance.
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`43.
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`Paragraph 43 provides additional allegations about soybeans’ importance to the
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`food supply chain and asserts that American soybean farmers depend on dicamba and DT
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`soybeans. Bayer admits that American soybean farmers rely on dicamba and DT soybeans and
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`that such products are important to the international agricultural economy.
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`B.
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`U.S. Cotton
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`44.
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`Paragraph 44 provides allegations regarding cotton’s importance as an important
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`cash crop and key fiber. Bayer admits that cotton is an important cash crop to the domestic and
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`global textile trade. Paragraph 44 also cites data and documents from the USDA, which speak for
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`themselves and are in their entirety the best evidence of their content.
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`45.
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`Paragraph 45 provides additional allegations about cotton growers’ contributions
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`to the American economy. Bayer admits that the contribution of cotton growers to the U.S.
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`economy is very significant. Paragraph 45 also cites data and documents from the USDA, which
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`speak for themselves and are in their entirety the best evidence of their content.
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`46.
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`Paragraph 46 provides additional allegations about cotton production in the Texas
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`High Plains. Bayer admits that Texas High Plains produces a significant volume of cotton
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`annually, but lacks knowledge or information sufficient to form a belief about the specific statistics
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`provided in paragraph 46.
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`47.
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`Paragraph 47 provides additional allegations about cotton growers’ contributions
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`to the American economy. Bayer recognizes that cotton growers are responsible for significant
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`domestic economic activity, but lacks knowledge or information sufficient to form a belief about
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`the specific statistics cited in paragraph 47.
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`48.
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`Paragraph 48 provides allegations about the United States’ role in the global cotton
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`market. Bayer admits that the United States is an internationally important cotton producer and
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`exporter, but lacks knowledge or information sufficient to form a belief about the specific statistics
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`cited in paragraph 48.
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`49.
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`Paragraph 49 cites data and documents from the USDA, which speak for
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`themselves and are in their entirety the best evidence of their content.
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`50.
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`Paragraph 50 cites data and documents from the USDA, which speak for
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`themselves and are in their entirety the best evidence of their content.
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`51.
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`Paragraph 51 cites data and documents from the USDA, which speak for
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`themselves and are in their entirety the best evidence of their content.
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`52.
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`Paragraph 52 asserts that cotton farmers depend on dicamba and DT cotton. Bayer
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`admits these allegations.
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`C.
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`The Rise of Herbicide-Resistant Weeds and Growers’ Answer: Dicamba
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`53.
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`Paragraph 53 provides Plaintiffs’ explanation, based on various sources and figures,
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`that soybeans and cotton form the backbone of the American farm economy. Bayer generally
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`admits that soybeans and cotton are leading and important crops. Paragraph 53 also purports to
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`summarize data and documents from the USDA, which speak for themselves and are in their
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`entirety the best evidence of their content.
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`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 11 of 24
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`i.
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`54.
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`Growers’ Fight Against Weeds
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`Paragraph 54 asserts that American soybean and cotton farmers face myriad threats
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`to their livelihood. Bayer admits that each of the factors cited can threaten soybean and cotton
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`farmers’ livelihoods.
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`55.
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`Paragraph 55 asserts that weeds pose a particularly dire threat to soybean and cotton
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`growers and explains why. Bayer admits that weeds can pose a significant threat to soybean and
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`cotton crops.
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`56.
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`Paragraph 56 provides additional allegations about why weeds are a major threat to
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`soybeans and the vital role herbicides play in safeguarding weeds. Bayer admits that weeds can
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`pose a significant threat to soybeans and that herbicides play a vital role in protecting crops against
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`weeds.
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`57.
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`Paragraph 57 provides additional allegations about why weeds are a major threat to
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`cotton and the role DT seeds have played in protecting crop yields. Bayer admits that weeds pose
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`a significant threat to cotton and that DT seeds and dicamba play a vital role in protecting crops
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`against weeds. Paragraph 57 also cites data and documents from the National Cotton Council,
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`which speak for themselves and are in their entirety the best evidence of their content.
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`ii.
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`58.
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`The Emergence of Glyphosate-Resistant Weeds
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`Paragraph 58 provides Plaintiffs’ explanation of how the development of herbicide-
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`resistant crops in the mid-1990s substantially improved farming for growers. To the extent these
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`general characterizations require a response, Bayer admits that the development of herbicide-
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`resistant crop greatly improved weed-management.
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`59.
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`Paragraph 59 alleges that these developments revolutionized weed-management
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`and provided myriad benefits to farmers, consumers, and the environment. Bayer admits these
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`allegations.
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`60.
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`Paragraph 60 alleges that farmers and customers substantially benefited from the
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`development of herbicide-resistant crops. Bayer admits these allegations.
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`61.
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`Paragraph 61 provides Plaintiffs’ description of growers’ weed-management
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`practices before herbicide-resistant crops were developed and Plaintiffs’ allegations about why
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`those developments yielded substantial benefits to farmers. Paragraph 61 also purports to
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`summarize documents from the USDA, which speak for themselves and are in their entirety the
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`best evidence of their content. Bayer generally admits that the development of herbicide-resistant
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`crops yielded substantial benefits and savings to farmers.
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`62.
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`Paragraph 62 asserts that the development of herbicide-resistant crops provided
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`environmental benefits as well. Bayer generally admits that the development of herbicide-resistant
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`crops yielded substantial environmental benefits. Paragraph 62 also cites data and documents from
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`the Keystone Alliance for Sustainable Agriculture, which speak for themselves and are in their
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`entirety the best evidence of their content.
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`63.
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`Paragraph 63 cites data and documents from the USDA, which speak for
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`themselves and are in their entirety the best evidence of their content.
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`iii.
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`64.
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`The Emergence of Glyphosate-Resistant Weeds
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`Paragraph 64 provides Plaintiffs’ description of the emergence of herbicide-
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`resistant weeds and the problems they pose to soybean and cotton farmers. Bayer admits that
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`glyphosate-resistant weeds pose serious problems to soybean and cotton growers.
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`65.
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`Paragraph 65 describes the types of common herbicide-resistant weeds and their
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`increasing prevalence. Paragraph 65 also purports to summarize documents from the USDA,
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`which speak for themselves and are in their entirety the best evidence of their content. Bayer
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`admits that pigweed, ragweed, horseweed, kochia, waterhemp, goosegrass, Italian ryegrass, and
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`Johnsongrass are among the weed species with populations confirmed to have glyphosate-
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`resistance in certain locations.
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`66.
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`Paragraph 66 provides additional allegations about how devastating herbicide-
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`resistant weeds are to crops. Bayer admits that a single Palmer amaranth plant can produce a
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`significant number of seeds and that Palmer amaranth can be a substantial problem for growers.
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`67.
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`Paragraph 67 describes the effects on growers from the emergence of herbicide-
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`resistant weeds and cites data and documents from the USDA, which speak for themselves and are
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`in their entirety the best evidence of their content.
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`68.
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`Paragraph 68 summarizes data and documents from the USDA, which speak for
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`themselves and are in their entirety the best evidence of their content.
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`iv.
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`69.
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`Dicamba: Growers’ Answer to Glyphosate-Resistant Weeds
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`Paragraph 69 asserts that dicamba-based herbicides and DT crops were developed
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`to address the issues from herbicide-resistant weeds. Bayer admits these allegations.
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`70.
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`Bayer admits that ABN Tavium Plus VaporGrip Technology is produced by
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`Syngenta, that Engenia Herbicide is produced by BASF, and that XtendiMax with VaporGrip
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`Technology is produced by Bayer. Bayer also admits that all three products are dicamba-based
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`herbicides.
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`71.
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`Paragraph 71 asserts that dicamba herbicides effectively counter herbicide-resistant
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`weeds and explains how these products work. Bayer admits these allegations.
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`72.
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`Paragraph 72 explains that dicamba and DT crops offer significant benefits over
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`other herbicides, including the ability to apply dicamba during the growing season, which provides
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`longer and better protection against weeds. Bayer admits these allegations.
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`73.
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`Paragraph 73 asserts that dicamba products also promise to delay development of
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`more herbicide-resistant weeds, quoting USDA. Bayer admits that dicamba could be used to delay
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`resistance development, as USDA recognized in 2014.
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`74.
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`Paragraph 74 consists of allegations regarding growers’ use of dicamba and DT
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`crops. Bayer acknowledges that many growers have benefited substantially from using its DT
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`crops and dicamba-herbicide products.
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`75.
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`Paragraph 75 asserts that soybean and cotton growers have invested billions into
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`DT crops and dicamba in recent years in light of their effectiveness. Bayer admits that it has sold
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`DT seeds and dicamba herbicide for use on millions of acres of cropland and that many growers
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`have utilized these products.
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`76.
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`Paragraph 76 asserts that, without dicamba, farms would be largely defenseless
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`against weeds as there are few other herbicides and most are only partially effective. Bayer admits
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`that its dicamba herbicide, when used in accordance with its product labels, provide a critical and
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`necessary solution for weed issues faced by soybean and cotton growers.
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`77.
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`Paragraph 77 asserts that, without an effective herbicide, growers would have to
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`resort to hand-weeding, and explains that hand-weeding is exorbitantly expensive, arduous to
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`implement, and impractical on large scale. Bayer admits the allegations regarding the limitations
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`of hand-weeding.
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`78.
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`Paragraph 78 asserts that removing dicamba would also expedite the emergence of
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`other herbicide-resistant weeds and that this would further frustrate weed prevention. Bayer
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`admits that the loss of dicamba may increase the rate at which other herbicide-resistant weeds will
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`develop.
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`79.
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`Paragraph 79 asserts that American soybean and cotton farmers depend on dicamba
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`to protect their crops, which in turn let them provide food, fuel, and clothes to society. Bayer
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`admits these allegations.
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`D.
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`The Dicamba Decision and its Application Restrictions
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`80.
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`Paragraph 80 asserts that EPA registered the dicamba products on October 27,
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`2020, and gives Plaintiffs’ characterization of the registration decision, which speaks for itself and
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`is in its entirety the best evidence of its own content.
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`i.
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`81.
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`EPA’s Latest Dicamba Registration
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`Paragraph 81 asserts that EPA has repeatedly analyzed and authorized over-the-top
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`application of dicamba since 2016, including in October 2020. Bayer admits these allegations.
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`82.
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`Paragraph 82 provides Plaintiffs’ characterization of EPA documents, which speak
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`for themselves and are in their entirety the best evidence of their own content.
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`83.
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`Paragraph 83 provides Plaintiffs’ characterization of this case, which requires no
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`response, and includes Plaintiffs’ discussion of the dicamba registration decisions, which speak
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`for themselves and are in their entirety the best evidence of their own content.
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`84.
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`Paragraph 84 consists of Plaintiffs’ characterization of additional EPA documents,
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`which speak for themselves and are in their entirety the best evidence of their own content.
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`85.
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`Paragraph 85 consists of Plaintiffs’ characterization of additional EPA documents,
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`which speak for themselves and are in their entirety the best evidence of their own content.
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`86.
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`Paragraph 86 consists of Plaintiffs’ characterizations of EPA’s analyses and various
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`EPA documents, which speak for themselves and are in their entirety the best evidence of their
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`own content. Bayer denies any allegations inconsistent with such documentation.
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`87.
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`Paragraph 87 consists of Plaintiffs’ further characterizations of EPA’s analyses and
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`various EPA documents, which speak for themselves and are in their entirety the best evidence of
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`their own content. Bayer denies any allegations inconsistent with that documentation.
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`88.
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`Paragraph 88 provides Plaintiffs’ further characterizations of their case and the
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`dicamba registration decision and conditions. These assertions require no response and the EPA
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`decision and conditions speak for themselves and are in their entirety the best evidence of their
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`own content. Bayer denies any allegations inconsistent with the documentation identified.
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`89.
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`Paragraph 89 asserts that growers wrote letters to EPA about dicamba registration
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`conditions and provides those letters as exhibits. Bayer admits that growers provided letters to
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`EPA. Those letters speak for themselves and are the best evidence of their own content.
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`90.
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`Paragraph 90 characterizes the conditions in EPA’s dicamba registration decision.
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`EPA’s decisions and conditions speak for themselves and are in their entirety the best evidence of
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`their own content. Bayer admits that the new conditions are generally more restrictive than in past
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`dicamba registrations.
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`ii.
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`91.
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`The Application Restrictions
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`Paragraph 91 characterizes EPA’s dicamba registration decision. EPA’s decisions
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`and conditions speak for themselves and are in their entirety the best evidence of their own content.
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`Bayer denies any allegations inconsistent with the relevant EPA documentation. Paragraph 91
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`also includes Plaintiffs’ assertion that that these restrictions will be detrimental to growers. Bayer
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`admits that the dicamba labels contain new and additional EPA restrictions that may result in
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`certain limitations on spraying or certain operational costs for certain growers, in certain
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`circumstances.
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`92.
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`Paragraph 92 provides Plaintiffs’ further assertions regarding the impacts of
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`application restrictions on Plaintiffs’ members. Bayer admits that EPA’s restrictions could, in
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`Case 1:20-cv-03190-RCL Document 41 Filed 04/06/21 Page 17 of 24
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`certain circumstances, have certain impacts on farm management, but Bayer lacks sufficient
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`information on the assumptions underlying the statements in this paragraph to categorize and
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`respond regarding all potential “unforeseeable conditions.”
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`93.
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`Paragraph 93 consists of Plaintiffs’ further assertions regarding the possible future
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`impacts of application restrictions on Plaintiffs’ members. Bayer admits that growers need weed
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`control options during cultivation of their cotton fields and that EPA has required application-date
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`cutoff restrictions on the labels of the dicamba herbicides.
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`94.
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`Paragraph 94 consists of Plaintiffs’ further assertions regarding the potential
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`impacts of application restrictions on Plaintiffs’ members. Bayer admits that cotton growers have
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`a need for weed control options during cultivation of their cotton fields, and that EPA has required
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`application-date cutoff restrictions on the labels of the dicamba herbicides.
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`95.
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`Paragraph 95 provides Plaintiffs’ characterizations and assertions regarding the
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`potential effects of the application restrictions on particular regions and growers. Bayer admits
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`that cotton growers need weed control options during cultivation of their cotton fields, and that
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`EPA has required application-date cutoff restrictions on the labels of the dicamba herbicides.
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`96.
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`Paragraph 96 provides Plaintiffs’ characterizations and assertions regarding the
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`effects of the application restrictions on particular regions and growers. Bayer admits that cotton
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`growers need weed control options during cultivation of their cotton fields, and that EPA has
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`required application-date cutoff restrictions on the labels of the dicamba herbicides.
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`97.
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`Paragraph 97 provides Plaintiffs’ characterizations of the application restrictions
`
`a