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Catching the Drift: The Herbicide Drift from Genetically-Modified Seeds to Nongenetically-Modified Seeds and Proposal for Strengthened Regulation

Catching the Drift: The Herbicide Drift from Genetically-Modified Seeds to Nongenetically-Modified Seeds and Proposal for Strengthened Regulation

Bomy Hwang

Herbicide drift describes the movement of herbicide from one location to another.[1] As it is used incessantly in agricultural settings, some weeds develop resistance to formulas.[2] Herbicide manufacturers, including Monsanto, partly responded to these troublesome “superweeds” by releasing genetically-modified seeds resistant to certain herbicide, such as dicamba.[3]

Recently, farmers who grew nongenetically-modified seeds complained about “dicamba drift.”[4] They alleged that the herbicide spray from neighboring farms caused their crops to deteriorate.[5] They sued for damages under tort claims, among others.[6]

 

Although farmers have recourse against herbicide manufacturers for losses incurred, recovery is limited, and the risk of losing in court is substantial.[7] Despite some states banning specific herbicide,[8] the Environmental Protection Agency (EPA) has subjected the manufacturers to relaxed standards.[9] In October 2017, EPA struck an agreement with three manufacturers to reduce crop damage linked to herbicide use.[10] However, the agreement evinces EPA’s belief that the fault is with the chemical applicator, not the product.[11] Firmer and stricter regulations against manufacturers are necessary to achieve two critical goals: (1) to ensure safe food product; and (2) to protect public welfare.

 

This Note will analyze the current legal status quo and seek to identify a solution to alleviate the problem. Part I will describe the herbicide drift problem before briefly discussing the history of herbicide drift regulation. Part II will examine the law associated with herbicide drift today. Part III will analyze the limitations of each law. Part IV will lay a plan for firmer and stricter regulations.

[1] Reducing or Avoiding Pesticide Drift, Landscape & Irrigation, Feb. 2000, at 22, 22.              

[2] David Pearce & Robert Tinch, The True Price of Pesticides, in Bugs in the System 50, 82 (William Vorley & Dennis Keeney eds., 1998).

[3] See Danny Hakim, Monsanto’s Weed Killer, Dicamba, Divides Farmers, N.Y. Times (Sept. 21, 2017), https://

www.nytimes.com/2017/09/21/business/monsanto-dicamba-weed-killer.html?emc=eta1 (stating that Monsanto developed genetically-modified seeds resistant to a herbicide named dicamba); cf. Sabrina Wilson, Comment, Induced Nuisance: Holding Patent Owners Liable for GMO Cross-Contamination, 64 Emory L.J. 169, 172 n.10 (2014) (“[N]atural selection has resulted in strains of ‘superweeds’ and ‘superbugs’ which now require farmers to use more toxic herbicides and pesticides.”). See generally Rebecca K. Stewart, Weeds, Seeds & Deeds Redux: Natural and Legal Evolution in the U.S. Seed Wars, 18 Stan. Tech. L. Rev. 79, 94–150 (2014) (discussing “superweeds”).

[4] Hakim, supra note 3.

[5] Id.

[6] See generally Class Action Complaint & Demand for Jury Trial at 77–96, Smokey Alley Farm P’ship v. Monsanto Co., No. 4:17-cv-2031 (E.D. Mo. July 19, 2017) (detailing plaintiffs’ claims for relief).

[7] Cf., e.g., Johnson v. Paynesville Farmers Union Coop. Oil Co., 817 N.W.2d 693, 705 (Minn. 2012) (dismissing plaintiff’s trespass claim as a matter of law); id. at 703 (noting jurisdiction splits).

[8] E.g., Letter from Susie Nichols, Agric. Div. Manager, Pesticide Div., Ark. State Plant Bd. (June 11, 2017), http://www.aad.arkansas.gov/Websites/aad/files/Content/6065042/Dicamba_Sale_and_Use_Ban,_Letter.pdf (imposing a 120 day ban of dicamba); Missouri Department of Agriculture Releases Stop Sale, Use or Removal Order on ENGENIA, XTENDIMAX and FEXAPAN Herbicides, Mo. Dep’t Agric. (July 13, 2017), http://

agriculture.mo.gov/news/newsitem/uuid/864bbc1a-9871-48dc-8fe3-a3b518a9c15d/missouri-department-of-agriculture-releases-stop-sale-use-or-removal-order-on-engenia-xtendimax-and-fexapan-herbicides (banning three herbicides); Another State Bans Monsanto Pesticide, Greenwire (July 14, 2017), https://www.eenews.net/

greenwire/stories/1060057393/search?keyword=pesticide+drift (announcing severe restrictions on dicamba use).

[9] See Controversial Weed Killer Untested for Drifting, Greenwire (Aug. 9, 2017), https://www.eenews.net/

greenwire/stories/1060058567 (discussing a lack of regulation from federal and state regulators concerning an independent testing of dicamba).

[10] Corbin Hiar, EPA Strikes Deal with Manufacturers of Popular Weedkiller, Greenwire (Oct. 13, 2017), https://

www.eenews.net/greenwire/stories/1060063611/search?keyword=strikes+a+deal.

[11] See id. (describing agreement terms that consist of “impos[ing] additional requirements for farmers who plan to spray their fields of genetically modified [crops] with dicamba in the 2018 growing season”).

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