Reconciling Agricultural Production and Property Rights with the Use of Dicamba Herbicides

Authors

Terence J. Centner, University of Nebraska–Lincoln, College of Law and Agricultural Economics

First Page

1129

Abstract

The production of food and fiber by our nation’s farmers is often dependent on using herbicides to control weed growth that can reduce crop yields. After several decades of herbicide usage, some weed species developed resistance to glyphosate and were decreasing yields. Seed and pesticide manufacturers responded to weed resistance by developing genetically engineered soybean and cotton seeds and specially formulated over-the-top (OTT) dicamba products. Commencing in 2017, OTT dicamba products were used to successfully kill glyphosate-resistant weeds. However, dicamba is a volatile herbicide, and applications of the new OTT products were accompanied by spray drift and volatilization that injured offsite vegetation, including non-dicamba-resistant soybeans. In the National Family Farm Coalition v. Environmental Protection Agency lawsuit, the Ninth Circuit found that the Environmental Protection Agency (EPA) had understated some of the products’ risks and failed to acknowledge other risks. An analysis of 2020 OTT dicamba registrations supports a conclusion that the EPA again failed to adequately account for the costs associated with the use of the OTT products. volatilization, harming neighboring crops and vegetation.

After reviewing EPA registration decisions and litigation over dicamba products, the Article argues that regulators underestimated important risks and costs. It proposes a government-sponsored dicamba compensation program funded by fees on dicamba purchasers, designed to compensate injured property owners, internalize externalities, and reduce conflict by providing a structured alternative to tort litigation.

This Article proposes a government-sponsored dicamba compensation program to insure neighboring property owners who suffer injuries from dicamba spray applications. The program would collect occupational fees from persons purchasing dicamba products and place the monies in a fund that would be used to compensate proven offsite dicamba damages. By compensating property owners for the destruction of property rights, the program places injury costs on applicators. Such a program would acknowledge property owners’ right to exclude harmful pesticides from their properties and provide an alternative to litigation, thereby reducing tensions between applicators and community members.

Recommended Citation

Terence J. Centner, Reconciling Agricultural Production and Property Rights with the Use of Dicamba Herbicides, 25 Lewis & Clark L. Rev. 1129 (2022).
Available at: https://lawcommons.lclark.edu/lclr/vol25/iss4/5