Case 1:20-cv-03190-RCL Document 50 Filed 04/27/21 Page 1 of 30
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Plaintiffs,
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`AMERICAN SOYBEAN ASSOCIATION,
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`and
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`PLAINS COTTON GROWERS, INC.,
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`vs.
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`in his official
`MICHAEL S. REGAN,
`capacity as the Administrator of the U.S.
`Environmental Protection Agency,
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`and
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`MARIETTA ECHEVERRIA, in her official
`capacity as Acting Division Director of the
`U.S. Environmental Protection Agency,
`Office of Pesticide Programs, Registration
`Division,
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`and
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`UNITED STATES ENVIRONMENTAL
`PROTECTION AGENCY,
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`Defendants.
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`Case No.: 1:20-CV-03190-RCL
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`AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`1
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`Case 1:20-cv-03190-RCL Document 50 Filed 04/27/21 Page 2 of 30
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`Plaintiffs American Soybean Association and Plains Cotton Growers (collectively,
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`“Plaintiffs” or “Growers”), bring this complaint against defendants Michael S. Regan,
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`Administrator of the U.S. Environmental Protection Agency;1 Marietta Echeverria, Acting
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`Division Director of the U.S. Environmental Protection Agency, Office of Pesticide
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`Programs, Registration Division; and the U.S. Environmental Protection Agency, and state as
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`follows:
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`1.
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`INTRODUCTION
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`This case concerns the United States Environmental Protection Agency’s
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`(“EPA”) registration of the herbicide dicamba for use on soybean and cotton crops genetically
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`engineered to withstand “over-the-top” applications of dicamba.
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`2.
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`Dicamba, coupled with dicamba-tolerant (“DT”) soybean and cotton, are
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`critical tools in American farmers’ efforts to combat herbicide-resistant weeds.
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`3.
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`Herbicide-resistant weeds are a growing scourge, capable of crushing crop
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`yields, overwhelming entire fields, and financially harming farmers. Dicamba and DT crops
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`are critical weapons for farmers in their fight against these weeds.
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`4.
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`Plaintiffs are cotton and soybean growers’ associations, whose members
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`depend on dicamba and DT crops to keep their fields full, the nation’s supermarkets stocked,
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`and the world fed, fueled, and clothed.
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`5.
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`EPA recently registered dicamba for use on DT soybeans and cotton under the
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`Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). In so doing, EPA imposed
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`1 Michael S. Regan is automatically substituted for Andrew R. Wheeler under Federal Rule
`of Civil Procedure 25(d).
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`2
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`Case 1:20-cv-03190-RCL Document 50 Filed 04/27/21 Page 3 of 30
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`an array of application and use conditions on soybean and cotton growers, who are the end
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`users of the dicamba product.
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`6.
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`EPA’s registration decision arms Growers with an essential weed-management
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`tool for the 2021 growing season and beyond. But some aspects of the registration decision
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`are problematic for Growers, who depend on reasonable, consistent access to dicamba for use
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`on DT soybeans and cotton.
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`7.
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`In particular, several registration conditions impose growing restrictions and
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`disrupt growing seasons which will diminish crop yields, cut productivity, and drive up
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`operational costs. Some of these conditions are significantly more stringent than those found
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`in past dicamba registrations.
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`8.
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`This action challenges those conditions as arbitrary and capricious and beyond
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`the agency’s authority under FIFRA and the Administrative Procedure Act. More specifically,
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`this case seeks remand of EPA’s temporal dicamba application restrictions and spatial
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`application buffers.
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`PARTIES
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`Plaintiffs are agricultural trade associations that represent farmers and their
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`9.
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`families nationwide. Their members’ soybean and cotton crops provide the United States and
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`the world with food, fuel, feed, and fiber.
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`10.
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`Founded 100 years ago, Plaintiff American Soybean Association (“ASA”) is a
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`national, not-for-profit trade association representing U.S. soybean growers on domestic and
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`international issues of importance to the American soybean industry. ASA represents the
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`interests of more than 300,000 soybean farmers nationwide.
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`3
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`Case 1:20-cv-03190-RCL Document 50 Filed 04/27/21 Page 4 of 30
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`11. Advocating and advising on herbicide and environmental regulation is one of
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`the core tenets of ASA’s mission.2 In addition to its advocacy efforts, ASA devotes substantial
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`time and resources to grower education, regulatory compliance, and advising services,
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`including advising growers on working through and complying with current and past dicamba
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`registrations.3 ASA’s efforts include diverting significant resources to advising, educating,
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`and advocating on EPA’s recent dicamba registrations.
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`12.
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`Established in 1956 by cotton producers from across the Texas High Plains
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`production region, Plains Cotton Growers, Inc. is a non-profit producer organization
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`composed of regional cotton producers. Plains Cotton Growers members annually plant
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`between 3.5–4.5 million acres of cotton. The High Plains region represents the largest cotton
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`production region in the United States and accounts for approximately one third of all planted
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`U.S. cotton acreage.
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`13. Defendant Michael S. Regan is the EPA Administrator and is sued in his official
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`capacity. Under FIFRA, Administrator Regan—as head of the EPA—is the federal official
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`responsible for pesticide registration, including administering the decisions challenged here.
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`14. Defendant Marietta Echeverria is Acting Division Director of the EPA’s Office
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`of Pesticide Programs, Registration Division, and is sued in her official capacity. In that role,
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`Acting Director Echeverria approves and administers FIFRA registrations, including the
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`decisions challenged here. Acting Director Echeverria reports to EPA Administrator Regan.
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`2 ASA, Key Issues & Initiatives – Pesticide and Environment Regulations, available at
`https://soygrowers.com/key-issues-initiatives/key-issues/regulatory/ (last visited Oct. 22,
`2020).
`3 ASA, Grower Education, available at https://soygrowers.com/education-resources/grower-
`education/ (last visited Oct. 22, 2020).
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`15. Defendant EPA is an agency of the United States federal government. FIFRA
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`vests EPA with responsibility for registering pesticides, including the decisions challenged
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`here. EPA is also responsible for ensuring that pesticide registrations comply with all
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`applicable law.
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`JURISDICTION AND VENUE
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`16.
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`This Court has subject matter jurisdiction over Plaintiffs’ claims under 28
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`U.S.C. § 1331 (federal question jurisdiction), 5 U.S.C. § 702 (the Administrative Procedure
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`Act or “APA”), and 7 U.S.C. § 136n(a) (FIFRA).
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`17.
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`This Court has authority to issue the requested declaratory and injunctive relief
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`under 5 U.S.C. §§ 701–706 (APA) and 28 U.S.C. §§ 2201–2202 (declaratory and injunctive
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`relief).
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`18.
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`This Court has personal jurisdiction over Administrator Regan, Acting Division
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`Director Echeverria, and EPA, as each is an agency or official of the United States federal
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`government, working and seated in Washington, D.C.
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`19. Venue is proper in this District under 28 U.S.C. § 1391(b) and 28 U.S.C.
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`§ 1391(e) because Defendants reside in this District and because a substantial part of the
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`events giving rise to Plaintiffs’ claims occurred in this District. Nearly everything concerning
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`this case occurred in the District of Columbia, including EPA’s decision-making process and
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`EPA’s actual registration decisions, which occurred out of its headquarters.
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`A.
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`STATUTORY AND REGULATORY FRAMEWORK
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`The Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”)
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`20.
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`FIFRA is the core federal statute regulating the distribution, sale, and use of
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`pesticides in the United States. Approximately 18,000 pesticides were in use across the
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`country as of 2012.4
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`21.
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`FIFRA generally requires EPA to register (or license) a pesticide before it can
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`be sold or distributed. See 7 U.S.C. § 136 et seq. “Pesticides,” under FIFRA, include “any
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`substance or mixture of substances intended for preventing, destroying, repelling, or
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`mitigating any pest.” Id. § 136(u).
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`22. Under FIFRA, EPA “shall register a pesticide” if a pesticide, among other
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`things, “will perform its intended function without unreasonable adverse effects on the
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`environment.” 7 U.S.C. 136a(c)(5).
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`23. When registering a pesticide, FIFRA authorizes EPA to establish rules for
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`pesticide use, including how and when a pesticide may be used. See 7 U.S.C. § 136a.
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`24. Any registration restrictions imposed under FIFRA are judicially reviewable
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`under the statute itself, 7 U.S.C. § 136n, and the APA, 5 U.S.C. § 706.
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`The Endangered Species Act (“ESA”)
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`B.
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`25.
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`The ESA aims to protect “endangered species and threatened species.” 16
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`U.S.C. § 1531(b). Under the ESA, federal agencies usually need to “insure that any action
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`authorized . . . or carried out” by the agency “is not likely to jeopardize the continued
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`existence of any endangered species or threatened species.” 16 U.S.C. § 1536(a)(2).
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`4 See Congressional Research Service, Pesticide Law: A Summary of the Statutes at 1 (Nov.
`12, 2012), available at https://crsreports.congress.gov/product/pdf/RL/RL31921.
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`26.
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`Before undertaking most federal actions, the ESA and its implementing
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`regulations require that federal agencies assess whether the action “may affect” threatened
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`or endangered species (“Listed Species”) or their designated “critical habitat.” 50 C.F.R. §
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`402.14(a)–(b). If the agency’s answer is yes, the agency usually consults with the U.S. Fish
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`and Wildlife Service (“FWS”) or the National Marine Fisheries Service (“NMFS”). Id.
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`27.
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`If the agency’s “may affect” analysis finds that the action is “not likely to
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`adversely affect” Listed Species or critical habitat, the agency-to-agency consultation ends
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`with FWS’s or NMFS’s written concurrence. Id. § 402.14(b)(1). But if the agency action is
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`likely to adversely affect Listed Species, the acting agency must open “formal consultation”
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`with FWS or NMFS. Id. § 402.14(c)–(h).
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`28. During formal consultation, FWS or NMFS can conclude that a proposed
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`action is not likely to jeopardize Listed Species or result in the destruction or adverse
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`modification of Listed Species’ critical habitat, but still potentially result in “incidental
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`take” of Listed Species. Id. § 402.14(i). In that event, FWS or NMFS usually proposes
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`“reasonable and prudent measures” to minimize the scope of any incidental “take.” Id.
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`29.
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`If, on the other hand, FWS or NMFS finds that the agency action is likely to
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`jeopardize the continued existence of Listed Species or result in critical habitat destruction
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`or adverse modification, FWS and NMFS will propose “reasonable and prudent
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`alternatives” intended to avoid those impacts. Id. § 402.14(g)–(h).
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`30.
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`The ESA contains a nonexclusive “citizen suit” provision authorizing, among
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`other things, “any person” to sue to “enjoin any person . . . who is alleged to be in violation
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`of any provision” of the ESA or any “regulation issued under the authority thereof.” 16
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`U.S.C. § 1540(g)(1)(A).
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`31.
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`Suits challenging EPA’s “conduct in implementing or enforcing the ESA,”
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`however, do not allege a “’violation’ of the ESA within the meaning of th[at] provision.”
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`Bennett v. Spear, 520 U.S. 154, 172-73 (1997). Instead, that element of the ESA’s citizen
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`suit provision “is a means by which private parties may enforce the substantive provisions
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`of the ESA against regulated parties—both private entities and Government agencies—but
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`is not an alternative avenue for judicial review of the [EPA’s] implementation of the
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`statute.” Id.
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`32.
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`Thus, claims challenging EPA’s “maladministration of the ESA,” including
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`those arising under section 1536, “are not subject to judicial review under [ESA] §
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`1540(g)(1)(A).” Id. ESA section 1536 claims, rather, “are reviewable under the APA.”
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`Bennett, 520 U.S. at 175-76, 179; see also Pub. Emps. for Envtl. Responsibility v.
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`Cruickshank, No. 10-1067, 2019 WL 6465088, at *6 (D.D.C. Dec. 2, 2019) (Ҥ 1536 claims
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`are maladministration claims that are not authorized under the ESA’s citizen suit provision”
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`but “are, however, reviewable under the APA.”).
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`C.
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`The Administrative Procedure Act
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`33. Under the APA, any “person suffering legal wrong because of agency action,
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`or adversely affected or aggrieved by agency action within the meaning of a relevant statute,
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`is entitled to judicial review thereof.” 5 U.S.C. § 702.
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`34. All “[a]gency action[s] made reviewable by statute”—such as FIFRA—“any
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`final agency action[s] for which there is no other adequate remedy in a court are subject to
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`judicial review.” Id. § 704.
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`35.
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`The APA authorizes courts to “hold unlawful and set aside agency action,
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`findings, and conclusions” that, among other things, are “arbitrary, capricious, an abuse of
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`discretion, [] otherwise not in accordance with law,” “in excess of statutory jurisdiction,
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`authority, or limitations,” or “unsupported by substantial evidence.” Id. § 706.
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`36. APA review “applies universally except to the extent that—(1) statutes
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`preclude judicial review; or (2) agency action is committed to agency discretion by law.”
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`Bennett 520 U.S. at 175 (quoting 5 U.S.C. § 701(a)).
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`FACTUAL BACKGROUND
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`This case concerns EPA’s decision to register dicamba for use, including
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`37.
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`over-the-top use, on DT soybean and cotton as described in EPA’s Memorandum
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`Supporting Decision to Approve Registration for the Uses of Dicamba on Dicamba Tolerant
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`Cotton and Soybean (the “Dicamba Memorandum,” a true and correct copy of which is
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`attached as Exhibit A). The Dicamba Memorandum is an agency document that underpins
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`three individual registrations and their product labels (the labels are included in the
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`registration documents), each applicable to three specific products manufactured and
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`distributed by different manufacturers (the “Registrants”).
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`38.
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`The Dicamba Memorandum and registrations are, in turn, supported by
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`several additional EPA analyses, including benefits assessments for dicamba use on soybean
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`and cotton, an ecological and species effects determination, an updated human health risk
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`assessment, and an analysis of incidents and impacts to dicamba users and non-users. All of
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`these documents together—the Dicamba Memorandum, the individual registrations, and the
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`supporting analyses—constitute the “Dicamba Decision.”
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`39.
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`Soybean and cotton form the backbone of the U.S. agricultural sector. And
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`dicamba is a critical tool in Growers’ growing fight against herbicide-resistant weeds, which
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`threaten soybean and cotton farms nationwide.
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`40.
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`EPA’s Dicamba Decision arms Growers with an essential weed-management
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`tool for the 2021 growing season and beyond. But some aspects of the Dicamba Decision are
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`not legally sound and are problematic for Growers, who depend on reasonable, consistent
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`access to dicamba for uses on DT soybeans and cotton. The Dicamba Decision’s spatial- and
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`temporal-use conditions, in particular, will undermine the products’ benefits.
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`41. Unless these restrictions are remanded back to EPA for further consideration,
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`American soybean and cotton farmers will be harmed. So, too, will downstream
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`consumers—who rely on soy and cotton to feed and clothe their families—and businesses—
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`who depend on soy and cotton to stock their grocery and clothing aisles.
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`A.
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`U.S. Soybean
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`Soybeans are an essential agricultural staple. Soybeans and soybean oil
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`42.
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`underpin myriad domestic supply chains: soybeans are an important ingredient in
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`innumerable food, industrial, and pharmaceutical products, in addition to a significant
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`volume of animal feed and biodiesel fuel.
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`43. According to the U.S. Department of Agriculture (“USDA”), processed
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`soybeans are the world’s largest source of animal protein feed, while soybean oil comprises
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`almost 70% of American household vegetable oil consumption.5 Additionally, more than
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`half of all U.S. biodiesel comes from soybean oil.6
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`5 See USDA, Monsanto Pets. (10-188-01p and 12-185-01p) for Determinations of
`Nonregulated Status for Dicamba-Resistant Soybean and Cotton Varieties, Final Envtl.
`Impact Statement (“Soybean FEIS”) (2014) at 93, available at
`https://www.aphis.usda.gov/brs/aphisdocs/dicamba_feis.pdf.
`6 See United Soybean Board, Issue Briefs: Biodiesel https://www.unitedsoybean.org/media-
`center/issue-briefs/biodiesel/ (last visited November 4,
`2020).
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`44.
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`For these reasons, soybeans are a cornerstone of America’s agricultural
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`economy. In 2018, for example, soybeans accounted for a full third of all crop area planted
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`in the United States—more than 80 million acres of soybean plants dot the U.S.7
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`45. U.S. soybean sales are a key driver of the U.S. farm economy. Last year,
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`domestic soybean crop value exceeded $34 billion.8
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`46. American soybeans are also a major player in the global agricultural market.
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`The United States is the world’s largest soybean producer and second-largest exporter.9 In
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`2019, Americans exported a record 49.7 million metric tons of soybeans around the world,
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`comprising a significant share of American agricultural exports. 10
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`47.
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`Perhaps unsurprisingly, American soybeans are an international and domestic
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`dietary staple. Historically, American soybeans are a key element of global diets because
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`they are healthy (soybeans are a good source of protein, carbohydrates, fat, calcium, foli c
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`acid, iron, and dietary fiber, all while being heart-healthy), versatile (soybeans are ground
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`into flour, made into meat alternatives like tofu and tempeh, prepared as beverages, and
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`blended into nut butter), and affordable.11 In fact, soybeans are a complete source of protein
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`because they contain every amino acid essential for human growth and development. 12
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`7 See ASA, SoyStats, https://soygrowers.com/wp-content/uploads/2019/10/Soy-Stats-
`2019_FNL-Web.pdf (last visited November 4, 2020).
`8 See USDA Economic Research Service,
`https://data.ers.usda.gov/reports.aspx?ID=17845 (last visited November 4, 2020).
`9 See USDA Economic Research Service, https://www.ers.usda.gov/topics/crops/soybeans -
`oil-crops/ (last visited November 4, 2020).
`10 See ASA, SoyStats, http://soystats.com/international-world-soybean-exports/ (last visited
`November 4, 2020).
`11 See U.S. Agency for International Development (“USAID”), Soybeans Commodity Fact
`Sheet,https://2012-2017.usaid.gov/what-we-do/agriculture-and-food-security/food-
`assistance/resources/soybeans-commodity-fact-sheet (last visited November 4, 2020).
`12 Id.
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`48.
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`For these reasons, the United States has a long history of providing soybeans
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`and soy-fortified foods to developing countries for emergency and dev elopment assistance.13
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`49.
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`Simply put, American soybeans are an essential link in the domestic and
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`international food supply chain. And American soybean farmers, in turn, depend on dicamba
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`and DT soybeans to keep the world fed and fueled.
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`U.S. Cotton
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`B.
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`50.
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`Cotton is also an important cash crop, and one that underpins much of the
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`domestic and global textile trade. As a key textile fiber, cotton accounts for a quarter of
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`total world fiber use.14
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`51.
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`In the United States alone, harvested area for the 2020 crop of upland cotton
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`is projected at approximately 9 million acres across the country, with an expected yield of
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`16.5 million bales—equivalent to about 7.9 billion pounds of cotton.15 Cotton growers pump
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`an average of $5.6 billion into the U.S. economy annually, through labor, fertilizer, seed,
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`and farm equipment inputs.16
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`52.
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`The Texas High Plains, on its own, produces an average of 3.5 million bales
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`of upload cotton annually—equal to 1.7 billion pounds. Indeed, the High Plains produces
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`enough cotton to qualify, standing alone, as one of the top ten cotton-producing countries in
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`the world.
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`13 Id.
`14 See USDA Economic Research Service,
`https://www.ers.usda.gov/topics/crops/cotton-wool/ (last visited November 4, 2020).
`15 See USDA Economic Research Service, Situation and Outlook Report: Cotton and Wool
`Outlook, October 14, 2020, at 2-3, available at
`https://www.ers.usda.gov/webdocs/outlooks/99557/cws-20j.pdf?v=3388
`16 See National Cotton Council (“NCC”), World of Cotton,
`http://www.cotton.org/econ/world/index.cfm (last visited November 4, 2020).
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`53. American cotton growers stimulate more than $75 billion in annual domestic
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`economic activity, supporting more than 125,000 jobs from field to textile mill. 17
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`54. As with soybeans, the United States is an internationally important cotton
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`producer and exporter. The United States is the world’s third-largest cotton producer and the
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`world’s leading cotton exporter. 18
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`55.
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`In fact, U.S. cotton farmers are the foundation of the international cotton
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`market: the approximately 14.6 million bales of U.S. cotton that are projected for export this
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`year will make up approximately 35% of the total world cotton export market. 19 On top of
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`these raw cotton exports, the U.S. also exports on average more than 3.5 million bale
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`equivalents of processed cotton textiles annually.20
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`56. Most cotton fiber ends up in apparel, with the remainder going into home
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`furnishing and industrial products. 21
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`57.
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`Cotton creates cottonseed too. Every year, approximately 6 billion pounds of
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`whole cottonseed and cottonseed meal makes its way into feed for livestock, dairy cattle,
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`and poultry.22
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`58.
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`Like soybean farmers, cotton farmers also rely on dicamba and DT seed.
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`Without them, cotton farmers would struggle to meet the demands of the world’s ever-
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`expanding population.
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`17 Id.; see also NCC, 2018 NCC Report
`to Members Summary, available at
`https://www.cotton.org/about/report/2018/ (last visited November 4, 2020).
`18 See supra n.13.
`19 See supra n.14, at 3.
`20 See supra n.15.
`21 Id.
`22 Id.
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`C.
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`The Rise of Herbicide-Resistant Weeds and Growers’ Answer: Dicamba
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`59.
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`Soy and cotton, together, form the backbone of the American farm economy.
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`Domestically, soy and cotton account for more than three of every ten acres of U.S.
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`cropland.23 Internationally, American soybean and cotton exports generated over $27 billion
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`in 2017, with soybeans qualifying as the United States’ top agricultural export, and cotton
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`being the United States’ eighth most valuable agricultural export.24
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`i.
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`Growers’ Fight Against Weeds
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`60. Yet American soybean and cotton farmers face an ever-growing litany of
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`financial and physical threats each growing season. Inclement weather, pests, price
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`fluctuations, unstable global markets, uneven trade policies, and persistent weeds all
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`threaten soybean and cotton farmers’ livelihoods.
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`61. Weeds pose a particularly dire threat to soybean and cotton growers. Weeds
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`compete with crops for light, nutrients, and water; harbor insects and diseases; undermine
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`harvests; and wear down farm equipment.25
`
`62.
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`Soybeans are a case in point. Weeds alone pose a greater threat to soybeans
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`than either insects or diseases, and independently drive soybean yields down 37%
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`worldwide.26 Experts estimate that, without herbicides, weeds would cut soybean yields in
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`half.27
`
`
`23 ASA, Soy Stats – U.S. Planting Data: Crop Area Planted, available at
`http://soystats.com/planting-data-crop-area-planted/ (last visited November 4, 2020).
`24 See USDA, Foreign Agricultural Service, Top U.S. Agricultural Exports in 2017, available
`at https://www.fas.usda.gov/data/top-us-agricultural-exports-2017 (last visited November 4,
`2020).
`25 See Soybean FEIS at 69.
`26 Id.
`27 See Weed Science Society of America, Perspectives on soybean yield losses
`due to weeds in North America, available at http://wssa.net/wp-content/uploads/WSSA-2016-
`Soybean-Yield-Loss-poster.pdf (last visited November 4, 2020)
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`Case 1:20-cv-03190-RCL Document 50 Filed 04/27/21 Page 15 of 30
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`63.
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`The impact of weeds on cotton is similarly devastating. According to the
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`National Cotton Council, research conducted prior to the availability of DT-tolerant cotton
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`varieties reported a minimum of 50% yield loss due to pressure from glyphosate-resistant
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`palmer amaranth (commonly known as “pigweed”).28
`
`
`
`ii.
`
`The Emergence of Glyphosate-Resistant Weeds
`
`64. Glyphosate-tolerant (“GT”) soybeans and cotton (and related herbicide-
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`resistant technologies) revolutionized farming for growers. Developed in the mid-1990s, GT
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`crops let farmers spray glyphosate—a broad-spectrum herbicide—“over-the-top” of soybean
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`and cotton crops during growing season (i.e., post-emergence). This technique effectively
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`kills most weeds, while leaving soybean and cotton plants unaffected.
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`65.
`
`The development of GT crops was a game changer for Growers, springing
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`weed-management and farm-management in the future all at once. Indeed, GT crops
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`generated a suite of benefits for farmers, consumers, and the environment.
`
`66.
`
`Farmers, and their down-market customers, immediately reaped significant
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`productivity, reliability, and economic gains.
`
`67.
`
`Before GT crops, growers mostly relied on tillage-based weed management
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`practices.29 Tillage-heavy weed control increased growers’ fuel and labor costs, triggered
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`soil erosion, and required significant water use.30 GT seeds also facilitated crop rotation
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`flexibility and reduced weather-related planting delays. These developments improved crop
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`productivity and yield, creating significant cost savings for farmers and their customers.
`
`
`28 See Letter from NCC to EPA Administrator Andrew Wheeler (the “NCC Letter”) at 2,
`September 10, 2020. A true and correct copy of the NCC Letter is attached as Exhibit B.
`29 See Soybean FEIS at 73.
`30 See Soybean FEIS at 39, 47.
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`Case 1:20-cv-03190-RCL Document 50 Filed 04/27/21 Page 16 of 30
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`68.
`
`The advent of GT crops brought environmental benefits, too. For example,
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`between 1980 and 2011, American soybean production increased by nearly 96% while
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`yields soared to 55%.31 At the same time, resource efficiency also skyrocketed: one bushel
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`of soybeans required 35% less land, caused 66% less soil erosion, used 42% less water, and
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`emitted 41% less greenhouse gas. 32
`
`69.
`
`This bevy of benefits understandably led soybean and cotton farmers to invest
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`quickly and heavily in GT seeds. By 2010, approximately 90% of soybean fields and 75% of
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`cotton fields used GT seeds.33
`
`
`
`iii. The Emergence of Glyphosate-Resistant Weeds
`
`70. Around the turn of the last decade, however, glyphosate-resistant weeds
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`emerged. Glyphosate-resistant weeds pose serious problems to soybean and cotton growers.
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`Indeed, these weeds can undo many of the productivity, yield, economic, and environmental
`
`gains generated by glyphosate-resistant crops.
`
`71. Glyphosate-resistant weeds are increasingly widespread. In 2012, for
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`example, the USDA estimated that 61 million acres of U.S. farmland suffered from
`
`glyphosate-resistant weeds.34 Pigweed, ragweed, horseweed, kochia, waterhemp,
`
`
`31 See Keystone Alliance for Sustainable Agriculture, Environmental and Socioeconomic
`Indicators for Measuring Outcomes of On-Farm Agricultural Production in the United States
`(2d Report, July 2012) at ix, available at https://ussec.org/wp-content/uploads/2015/10/Field-
`to-Market_Environmental-Indicator_Report_2012.pdf (last visited November 4, 2020). Yield
`generally refers to amount of crop grown per unit of land, while productivity refers to total
`harvest volume.
`32 Id. at IX-X.
`33 See USDA, Economic Research Service, Recent Trends in GE Adoption, available at
`https://www.ers.usda.gov/data-products/adoption-of-genetically-engineered-crops-in-the-
`us/recent-trends-in-ge-adoption.aspx (last visited November, 2020).
`34 See Soybean FEIS at 121.
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`
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`goosegrass, Italian ryegrass, and Johnsongrass are just a few of the growing laundry list of
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`glyphosate-resistant weeds.35
`
`72.
`
`These weeds are also particularly devastating. By way of example, a single
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`female Palmer amaranth plant can produce more than 600,000 seeds in a season, rapidly
`
`spreading its glyphosate-resistant offspring across cotton and soybean fields. 36 Palmer
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`amaranth weeds can quickly overwhelm crops, growing two to three inches per day,
`
`reaching heights of eight feet tall, and diverting water, nutrients, and other critical resources
`
`away from crops.37
`
`73. Glyphosate-resistant weeds functionally drag growers backwards in time.
`
`Combating these weeds forces farmers into applying antiquated weed management
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`technology like aggressive tillage and hand-weeding.38 Growers often need to apply
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`additional herbicides as well, further rolling back economic and environmental gains. 39
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`These costs are not insignificant, either. Growers can spend an additional $20 to $40 per
`
`acre on additional herbicides needed to fight glyphosate-resistant weeds.
`
`74. According to the USDA, glyphosate-resistant weeds also unwind the
`
`significant sustainability and environmental benefits that glyphosate-resistant crops ushered
`
`
`35 See id. at 6-8 (Appendix 6). The appendices to the Soybean FEIS are available at
`https://www.aphis.usda.gov/brs/aphisdocs/dicamba_feis_appendices.pdf (last visited
`November 4, 2020)
`36 See Eric Sfiligoj, The Weed Resistance Problem: A Matter of Billions, CropLife (April 1,
`2014), available at http://www.croplife.com/crop-inputs/herbicides/the-weedresistance-
`problem-a-matter-of-billions/ (last visited November 4, 2020).
`37 See Eric Sfiligoj, Herbicide Resistance: The Numbing Numbers from the
`Weed Wars, CropLife (April 2, 2017), available at
`http://www.croplife.com/cropinputs/herbicide-resistance-the-numbing-numbers-from-the-
`weed-wars/.
`38 See Soybean FEIS at 109, 121 152, 181.
`39 See id. at 113.
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`in. As the agency sees it, ceding further ground to glyphosate-resistant weeds will
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`undermine water quality, erode air quality, harm soil quality, increase greenhouse gas
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`emission, and undercut biodiversity.40
`
`
`
`iv.
`
`Dicamba: Growers’ Answer to Glyphosate-Resistant Weeds
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`75. Dicamba-based herbicides and DT crops were developed to address these
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`issues.
`
`76.
`
`Three dicamba-based herbicides are relevant here: ABN Tavium Plus
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`VaporGrip Technology (aka, A21472 Plus VaporGrip Technology, produced by Syngenta),
`
`XtendiMax with VaporGrip Technology (produced by Bayer CropScience), and Engenia
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`Herbicide (produced by BASF) (collectively, the “Dicamba Products”).
`
`77.
`
`The Dicamba Products effectively fight glyphosate-resistant weeds by
`
`allowing farmers to combine dicamba—another broad-spectrum herbicide—with DT
`
`soybean and cotton. Because weeds are not generally resistant to dicamba, growers can
`
`apply the Dicamba Products over-the-top of their DT crops, killing weeds (including
`
`glyphosate-resistant weeds) without harming the soybean and cotton plants.
`
`78.
`
`The Dicamba Products, paired with DT crops, offer two significant benefits.
`
`First, unlike many herbicides, the Dicamba Products can be applied during the growing
`
`season, after crops and weeds emerge (i.e., “post-emergence”), without hurting the crop.
`
`Applying dicamba during the growing season kills both glyphosate-resistant weeds and
`
`glyphosate-resistant seed banks, bringing growers immediate and longer-lasting relief from
`
`those weeds. Because the Dicamba Products are available post-emergence, they also allow
`
`Growers to fight late-season weeds, which can otherwise ov