United States v. 2020-06-03 | 19-70115 | NATIONAL FAMILY FARM COALITION V. USEPA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL FAMILY FARM
COALITION; CENTER FOR FOOD
SAFETY; CENTER FOR BIOLOGICAL
DIVERSITY; PESTICIDE ACTION
NETWORK NORTH AMERICA,
Petitioners,
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY; ANDREW WHEELER, in his
official capacity as Administrator,
Respondents,
MONSANTO COMPANY,
Respondent-Intervenor.
No. 19-70115
Environmental
Protection
Agency
OPINION
On Petition for Review of an Order of the
Environmental Protection Agency
Argued and Submitted April 21, 2020
San Francisco, California
Filed June 3, 2020
Before: Michael Daly Hawkins, M. Margaret McKeown,
and William A. Fletcher, Circuit Judges.
Opinion by Judge W. Fletcher

NAT’L FAMILY FARM COALITION V. USEPA2
SUMMARY
*
Environmental Law
The panel granted a petition for review challenging the
U.S. Environmental Protection Agency (“EPA”)’s October
31, 2018 approval, pursuant to the Federal Insecticide,
Fungicide, and Rodenticide Act (“FIFRA”), of conditional
amended registrations for dicamba-based herbicides for an
additional two years; and vacated the registrations based on
that decision.
Dicamba is a chemical herbicide used to combat weeds
that can also kill many desirable broadleaf plants, bushes, and
trees. Herbicide manufacturers reformulated dicamba
herbicides in an attempt to make dicamba less volatile and
therefore usable during the growing season. In 2016, the
EPA granted conditional, two-year amended registrations to
Monsanto and later two other agrochemical companies,
approving their reformulated dicamba-based herbicides for
over-the-top (“OTT”), or “post-emergent” use on dicamba-
tolerant (“DT”) soybeans and cotton ahead of the 2017
growing season. Petitioner’s previous petition for review of
the 2016 EPA registration decision was dismissed as moot.
Petitioners filed this new petition for review challenging the
EPA’s October 31, 2018 decision.
The panel held that the petition for review was timely
filed and that it had jurisdiction. The panel also held that the
EPA’s October 31, 2018 decision to register the three
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

NAT’L FAMILY FARM COALITION V. USEPA3
dicamba herbicides for OTT application qualified as an
“order” issued by the EPA, and the EPA’s decision followed
a “public hearing.” 7 U.S.C. §136n(b). The panel rejected the
EPA’s and Monsanto’s arguments for a restricted scope of
review, and concluded that all three registrations were at issue
in the petition.
FIFRA provides two requirements for conditional
amendment of an existing registration: the EPA must
determine that the applicant has submitted “satisfactory data;”
and the EPA must determine that the amendment will not
“significantly increase the risk of any unreasonable adverse
effect on the environment.” 7 U.S.C. § 136a(c)(7)(B). The
panel did not reach the satisfactory data element.
The panel held that the EPA’s October 31, 2018 decision,
and the conditional new-use registrations of XtendiMax,
Engenia, and FeXapan for use on DT soybeans and cotton
that were premised on that decision, violated FIFRA.
The panel held that the EPA substantially understated
three risks that it acknowledged. First, the EPA substantially
understated the amount of DT seed acreage that had been
planted in 2018, and, correspondingly, the amount of dicamba
herbicide that had been sprayed on post-emergent crops.
Second, the EPA purported to be agnostic as to whether
formal complaints of dicamba damage under-reported or
over-reported the actual damage, when record evidence
clearly showed that dicamba damage was substantially under-
reported. Third, the EPA refused to estimate the amount of
dicamba damage, characterizing such damage as “potential”
and “alleged,” when record evidence showed that dicamba
had caused substantial and undisputed damage.

NAT’L FAMILY FARM COALITION V. USEPA4
The panel held that the EPA failed to acknowledge three
other risks. First, the EPA failed to acknowledge record
evidence showing the high likelihood that restrictions on OTT
dicamba application imposed by the 2018 label would not be
followed. Second, the EPA failed to acknowledge the
substantial risk that the registrations would have anti-
competitive economic effects in the soybean and cotton
industries. Third, the EPA failed to acknowledge the risk that
OTT dicamba use would tear the social fabric of farming
communities.
Because the panel’s vacatur was based on its holding
under FIFRA, the panel did not reach the question whether
the registration decision also violated the Endangered Species
Act.
COUNSEL
Sylvia Shih-Yau Wu (argued), Center for Food Safety, San
Francisco, California; George A. Kimbrell (argued) and Amy
van Saun, Center for Food Safety, Portland, Oregon;
Stephanie M. Parent, Center for Biological Diversity,
Portland, Oregon; for Petitioners.
Sarah A. Buckley (argued), Trial Attorney; J. Brett Grosko
(argued), Senior Trial Attorney; Jonathan D. Brightbill,
Principal Deputy Assistant Attorney General; Jeffrey Bossert
Clark, Assistant Attorney General; Environment and Natural
Resources Division, United States Department of Justice,
Washington, D.C., Washington, D.C.; Scott Garrison,
Ariadne Goerke, and Michele Knorr, United States
Environmental Protection Agency, Office of General

NAT’L FAMILY FARM COALITION V. USEPA5
Counsel, Pesticides & Toxics Substances Law Office,
Washington, D.C.; for Respondents.
Richard P. Bress (argued), Philip J. Perry, Stacey L.
VanBelleghem, and Andrew D. Prins, Latham & Watkins
LLP, Washington, D.C., for Intervenor-Respondent.
Claire E. Tonry, Seattle, Washington, for Amici Curiae Save
Our Crops Coalition, Family Farm Defenders, Farm and
Ranch Freedom Alliance, Iowa Organic Association, Kansas
Rural Center, and Organic Farmers Association.
Jesse A. Buss, Willamette Law Group, Oregon City, Oregon,
for Amicus Curiae Dr. David A. Mortensen.
OPINION
W. FLETCHER, Circuit Judge:
American farmers have been using dicamba, a chemical
herbicide, to combat weeds for more than fifty years.
Dicamba is an effective weed killer, but its toxicity is not
limited to weeds. It can kill many desirable broadleaf plants,
bushes, and trees. It also has a well-known drawback.
Dicamba is volatile, moving easily off a field onto which it
has been sprayed. It can drift if the wind blows during
application; it can drift if applied during temperature
inversions; it can drift after application when it volatilizes, or
turns to a vapor, during hot weather. As a result of its
toxicity and its tendency to drift, dicamba had historically
been used to clear fields, either before crops were planted or
before newly planted crops emerged from the soil. This
changed in 2017.

NAT’L FAMILY FARM COALITION V. USEPA6
By the early 2000s, many weeds had developed a
resistance to the widely used herbicide glyphosate, the main
ingredient in Roundup brand-name products sold by the
Monsanto Company (“Monsanto”). In response, Monsanto
developed and patented genes that allowed soybean and
cotton crops to tolerate dicamba. Concurrently, Monsanto
and two other herbicide manufacturers reformulated dicamba
herbicides in an attempt to make dicamba less volatile and
therefore usable during the growing season. Their efforts
culminated in 2016, when, pursuant to the Federal
Insecticide, Fungicide, and Rodenticide Act (“FIFRA”),
7 U.S.C. §§ 136 et seq., the U.S. Environmental Protection
Agency (“EPA”) granted conditional, two-year amended
registrations to Monsanto and later the two other
agrochemical companies, approving their reformulated
dicamba-based herbicides for over-the-top (“OTT”), or “post-
emergent” use on dicamba-tolerant (“DT”) soybeans and
cotton ahead of the 2017 growing season. The conditional
registrations were to expire in late 2018.
1
On October 31, 2018, the EPA approved conditional
registrations for the three dicamba-based herbicides for an
additional two years. The EPA’s decision document
announced that the EPA “will be granting requests by Bayer
CropScience (formerly Monsanto Company), Corteva
(formerly DuPont), and BASF to amend their existing
conditional registrations that contain expiration dates of
November 9, 2018, and December 20, 2018, respectively.”
In the following week, the EPA issued conditional two-year
1
For the convenience of the reader, we list here the key abbreviations
used in this opinion. “Over-the-top” (dicamba use) is abbreviated “OTT.”
“Dicamba-tolerant” (soybean and cotton) is abbreviated “DT.” The Office
of Pesticide Programs (housed within the EPA) is abbreviated “OPP.”

NAT’L FAMILY FARM COALITION V. USEPA7
amended registrations to Bayer for its “M1768 Herbicide,”
also known as “XtendiMax With VaporGrip Technology”
(“XtendiMax”); to Corteva for its “DuPont FeXapan
Herbicide” (“FeXapan”); and to BASF for its “Engenia
Herbicide” (“Engenia”).
The National Family Farm Coalition, Center for Food
Safety, Center for Biological Diversity, and Pesticide Action
Network North America (“petitioners”) sought review of the
October 31, 2018, decision upon which the registrations were
based. Petitioners argue that the EPA’s decision violates both
FIFRA and the Endangered Species Act, 16 U.S.C.
§ 1536(a)(2).
We hold that the EPA’s October 31, 2018, decision, and
the conditional new-use registrations of XtendiMax, Engenia,
and FeXapan for use on DT soybean and cotton that are
premised on that decision, violate FIFRA. As we will explain
in more detail below, FIFRA provides two requirements for
conditional amendment of an existing registration. The EPA
must determine that (i) the applicant has submitted
“satisfactory data,” and (ii) the amendment will not
“significantly increase the risk of any unreasonable adverse
effect on the environment.” 7 U.S.C. § 136a(c)(7)(B). We
need not decide whether substantial evidence supports a
finding that the applicants submitted satisfactory
data—although, as we discuss below, the data have several
flaws—because we hold that the EPA substantially
understated risks that it acknowledged and failed entirely to
acknowledge other risks.
The EPA substantially understated three risks that it
acknowledged. The EPA substantially understated the
amount of DT seed acreage that had been planted in 2018,

NAT’L FAMILY FARM COALITION V. USEPA8
and, correspondingly, the amount of dicamba herbicide that
had been sprayed on post-emergent crops. Further, the EPA
purported to be agnostic as to whether formal complaints of
dicamba damage under-reported or over-reported the actual
damage, when record evidence clearly showed that dicamba
damage was substantially under-reported. Finally, the EPA
refused to estimate the amount of dicamba damage,
characterizing such damage as “potential” and “alleged,”
when record evidence showed that dicamba had caused
substantial and undisputed damage.
The EPA also entirely failed to acknowledge three other
risks. The EPA entirely failed to acknowledge record
evidence showing the high likelihood that restrictions on OTT
dicamba application imposed by the 2018 label would not be
followed. The EPA based its registration decision on the
premise that the label’s mitigation measures would limit off-
field movement of OTT dicamba. These measures became
increasingly restrictive with each iteration of OTT dicamba
labels. Record evidence shows that the restrictions on the
2016 and 2017 labels had already been difficult if not
impossible to follow for even conscientious users; the
restrictions on the 2018 label are even more onerous. Further,
the EPA entirely failed to acknowledge the substantial risk
that the registrations would have anti-competitive economic
effects in the soybean and cotton industries. Finally, the EPA
entirely failed to acknowledge the risk that OTT dicamba use
would tear the social fabric of farming communities.
We therefore vacate the EPA’s October 31, 2018,
registration decision and the three registrations premised on
that decision. Because our vacatur is based on our holding
under FIFRA, we do not reach the question whether the

NAT’L FAMILY FARM COALITION V. USEPA9
registration decision also violates the Endangered Species
Act.
I. Background
A. Evolution of Glyphosate-Resistant Weeds
Before its purchase by Bayer in 2018, Monsanto had
become a household name largely due to its flagship
herbicide Roundup. In the 1990s, Monsanto developed a
“Roundup Ready” crop system, selling this glyphosate-based
herbicide along with seeds genetically modified to tolerate
glyphosate. Monsanto’s Roundup Ready system allowed
farmers to apply glyphosate over genetically modified crops
during the growing season, killing weeds but leaving their
crops unharmed. By 2008, 92 percent of soybeans and
68 percent of cotton plantings in the United States came from
glyphosate-resistant seeds. Glyphosate was so popular that
many farmers sold their weed-tilling equipment and stopped
buying other herbicides, instead applying glyphosate on their
fields year after year.
After years of heavy glyphosate use by farmers, many
weeds developed glyphosate resistance. Such “superweeds”
include Palmer amaranth, a large and fast-growing weed that,
left unchecked, can take over a field. In search of a new
weed-killer, Monsanto and other agrochemical companies
turned to dicamba, which had been registered for limited use
since 1967. Dicamba works by mimicking auxin, a plant
hormone, to cause abnormal and ultimately fatal cell growth.
Dicamba is extremely toxic to broadleaf plants, bushes, and
trees. It can damage or kill fruiting vegetables, fruit trees,
grapes, beans, peas, potatoes, tobacco, flowers, and
ornamental plants. It can also damage or kill many species of

NAT’L FAMILY FARM COALITION V. USEPA10
large trees, including oaks, elms, and maples. Dicamba
damage is easily identified by its signature marker, “leaf
cupping.”
Dicamba’s toxic effect is magnified by its tendency,
shared with other synthetic auxins, to move off a field where
it is sprayed. Dicamba droplets can drift during or shortly
after spraying if the wind is blowing too hard or the spraying
equipment is moving too fast. Dicamba vapor can drift if
dicamba is applied during a temperature inversion—an
atmospheric condition in which cool air at the earth’s surface
traps warmer air above it, allowing the vapor to remain in a
concentrated cloud and move off-field during a light wind.
And dicamba vapor can drift if dicamba volatilizes after it has
come to rest on plants or the ground. Dicamba can volatilize
hours or even days after it has been applied, and it does so
more easily and in greater volumes as the temperature rises.
During temperature inversions, or after volatilizing on hot
days, dicamba can drift long distances, sometimes a mile or
more.
Because of its tendency to drift, dicamba had been largely
used in late winter or early spring before crops were planted.
Post-emergent use of dicamba was limited to crops that are
naturally tolerant of dicamba, such as corn and wheat, and
was typically limited to use early in the growing season.
B. Development of Lower-Volatility Dicamba Herbicides
and EPA’s 2016 Two-Year Conditional Registration
Decision
Monsanto and two other agrochemical companies—
DuPont and BASF—developed new dicamba products with
reduced (though not eliminated) volatility. The companies

NAT’L FAMILY FARM COALITION V. USEPA11
claimed to the EPA that their new dicamba herbicides had
such low volatility that they were unlikely to move in
significant amounts off the field to which they were applied
and could therefore be used safely during the growing season.
In 2010 and 2012, Monsanto submitted applications to the
EPA to register two different formulations of dicamba-based
herbicide for post-emergent use on genetically modified,
dicamba-tolerant (“DT”) soybeans and cotton.
In 2015, the U.S. Department of Agriculture deregulated
DT soybean and cotton seeds under authority granted by the
Plant Protection Act, 7 U.S.C. §§ 7701 et seq. Monsanto,
which had developed and patented the dicamba-tolerance
seed trait, began to sell these DT seeds ahead of the 2016
growing season, before the companion dicamba herbicides
had been approved by the EPA for over-the-top (“OTT”) use.
Farmers planted about 1.7 million acres of DT soybeans and
close to 50,000 acres of DT cotton in 2016. Record evidence
contains reports that some growers illegally sprayed the old
dicamba herbicides during the post-emergent phase of the
2016 growing season.
Under FIFRA, the EPA can conditionally amend the
registration of a pesticide (including an herbicide) to permit
an additional use only if it finds that the new use will not
significantly increase the risk of any unreasonable adverse
effect on humans or the environment, taking into account the
pesticide’s economic, social, and environmental costs and
benefits. See 7 U.S.C. § 136a(c)(7)(B) (allowing the EPA to
conditionally amend the registration of a pesticide to allow
for a new use); § 136(bb) (defining “unreasonable adverse
effects on the environment” to include “any unreasonable risk
to man or the environment, taking into account the economic,

NAT’L FAMILY FARM COALITION V. USEPA12
social, and environmental costs and benefits of the use of any
pesticide”).
Beginning in the fall of 2016, the EPA announced that it
would grant two-year conditional registrations for three
lower-volatility, OTT dicamba herbicides—Monsanto’s
XtendiMax; DuPont’s FeXapan; and BASF’s Engenia. In
support of its decision, the EPA identified two “important”
benefits from OTT application of dicamba on DT soybeans
and cotton. First, dicamba “provides an effective tool to treat
especially noxious weeds . . . including glyphosate-resistant
biotypes that threaten soybean and cotton production today.”
Second, “effective treatment of glyphosate-resistant weeds
can help control the spread of resistance.”
The EPA stated that the lower-volatility dicamba
formulations, if used in compliance with restrictions on an
approved label, posed little or no risk of adverse effects on
the environment and therefore imposed minimal costs. In its
registration decision, the EPA wrote that the label restrictions
“are known to profoundly impact any drift potential from
pesticide application.” “In aggregate, these formulations and
labeling requirements are expected to eliminate any offsite
exposures and effectively prevent risk potential to people and
non-target species.” The EPA concluded, “After weighing all
the risks of concern against the benefits of the new uses, the
EPA finds that when the mitigation measures for these uses
are applied, the benefits of the use of the pesticide outweigh[]
any remaining minimal risks, if they exist at all.”

NAT’L FAMILY FARM COALITION V. USEPA13
The conditional registrations allowed OTT dicamba use
in thirty-four states.
2
The conditional registrations for
XtendiMax and FeXapan were set to expire on November 9,
2018; the conditional registration for Engenia was set to
expire on December 20, 2018. The EPA wrote that the
conditional registrations would automatically expire unless
the agency determined that off-site incidents of dicamba
damage were not occurring at “unacceptable frequencies or
levels.”
The EPA’s 2016 registration decision required a detailed
label restricting the manner in which the dicamba-based
herbicides could be used. The most important restrictions
were: (1) application was prohibited during wind speeds
above fifteen miles per hour; (2) application was prohibited
during temperature inversions; (3) application was prohibited
if rain was expected in the next twenty-four hours;
(4) application was prohibited when spraying equipment was
traveling at a ground speed above fifteen miles per hour; (5) a
buffer of at least 110 feet between the last treated crop row
and the nearest downwind edge of the field was required; and
(6) a maximum sprayer boom height of twenty-four inches
above the weeds or crop canopy was required.
2
The states are Alabama, Arizona, Arkansas, Colorado, Delaware,
Florida, Georgia, Illinois, Iowa, Indiana, Kansas, Kentucky, Louisiana,
Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New
Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio,
Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee,
Texas, Virginia, West Virginia, and Wisconsin.

NAT’L FAMILY FARM COALITION V. USEPA14
C. Experience During the 2017 Growing Season, and
Label Amendment for the 2018 Growing Season
XtendiMax, Engenia, and FeXapan were on the market in
time for the 2017 growing season. Many farmers adopted the
new crop system, planting seeds with Monsanto’s dicamba-
tolerance trait on 27 million acres and using dicamba
herbicides on the post-emergent crops. From 2012 to 2016,
before use of OTT dicamba was allowed on DT soybeans and
cotton, an average of 231,000 pounds acid equivalent of
dicamba had been applied each year to cotton, while an
average of 537,000 pounds of dicamba had been applied to
soybeans. In 2017, almost 8 million pounds of dicamba were
applied to post-emergent soybeans, and almost 2 million
pounds were applied to post-emergent cotton.
In its 2016 registration decision, the EPA had written that
the label restrictions were “expected to eliminate any offsite
exposures” to dicamba. (Emphasis added.) But as the 2017
growing season progressed, complaints of dicamba-caused
damage to commercial crops and other plants soared. By the
end of the season, according to a report by Professor Kevin
Bradley of the University of Missouri, 2,708 formal
complaints of dicamba-caused damage were being
investigated by state departments of agriculture. Bradley
reported that university weed scientists estimated that
approximately 3.6 million acres of soybeans in twenty-four
states, or about 4 percent of all U.S. soybean acreage, were
damaged by off-field movement of dicamba.
Reuben Baris, Acting Chief of the herbicide branch of the
EPA’s Office of Pesticide Programs, told state regulatory
officials at a meeting in Washington, D.C., in the fall of 2017
that the agency was “very concerned with what has occurred”

NAT’L FAMILY FARM COALITION V. USEPA15
with the OTT use of dicamba. During a presentation in
September 2018, Baris confirmed that “[m]ore than
3.6 million acres” of soybeans had been damaged by dicamba
during the 2017 season. Baris noted, further, that the reported
damage was likely an underestimate of the actual damage
because, in his words, “[n]ot all reports of crop damage were
reported to State Departments of Agriculture.” Speaking on
the topic of dicamba at an annual meeting of the Pesticide
Stewardship Alliance in February 2018, Rick Keigwin, the
Director of the EPA’s Office of Pesticide Programs,
remarked, “I don’t say this in jest, but 2018 cannot look like
2017.”
Monsanto proposed changes to the XtendiMax label for
the 2018 growing season to address what the EPA
characterized as a “high number of crop damage incidents.”
The EPA also consulted state agencies and the U.S.
Department of Agriculture on the changes, but it did not
undertake a formal registration amendment process before
approving additional label restrictions for the OTT dicamba
products for the 2018 season. The most important additional
restrictions were: (1) application was prohibited if the wind
speed during application was less than three miles per hour or
more than ten miles per hour (rather than more than fifteen
miles per hour); (2) application was permitted only between
sunrise and sunset (rather than at any time other than during
a temperature inversion); (3) the herbicides had to be labeled
as “restricted use pesticides,” which could be applied only by
certified applicators or people working under their direct
supervision; and (4) applicators had to receive dicamba-
specific training.
In a letter to Monsanto adopting the changes, the EPA
wrote, “The amendment approved through this letter includes

NAT’L FAMILY FARM COALITION V. USEPA16
additional restrictions further minimizing off-field movement
of the active ingredient dicamba and do not affect the
conclusions in the supporting assessment of risk. EPA
accordingly continues to rely on all the assessments that
supported the new uses, and therefore does not require . . .
[any] new risk assessment.” In other words, the EPA
continued to rely on its risk assessment from a year earlier,
when it had concluded that the 2016 labeling requirements
“are expected to eliminate any offsite exposures and
effectively prevent risk potential to people and non-target
species.”
D. Experience During the 2018 Growing Season
In 2018, more than 103 million acres of soybeans and
cotton were planted in the United States. Of that total,
56 million acres were planted with seeds with Monsanto’s
dicamba-tolerance trait, up from 27 million acres the year
before. Bradley reported that by July 15, 2018, university
weed scientists estimated that in eighteen states there were
about 1.1 million acres of soybeans with dicamba damage.
The other sixteen states where OTT dicamba was approved
were not included in the report. By the same date the
previous year, Bradley reported, university weed scientists
had estimated 2.5 million acres of damaged soybeans. It is
unclear how many states were included in the July 2017
estimate.
The 2018 growing season was again marked by many
complaints of off-site dicamba damage. In the country’s
major soybean-producing states, the sharp increase in 2017 of
complaints to state agriculture departments about dicamba
damage to crops was followed by only a slight decrease in
complaints in 2018. In 2017 and 2018, Illinois, Indiana,

NAT’L FAMILY FARM COALITION V. USEPA17
Iowa, Minnesota, Missouri, Nebraska, North Dakota, and
South Dakota planted the most acres of soybeans. See
Quick Stats, NAT’L AGRIC. STATISTICS SERV.,
https://quickstats.nass.usda.gov/results/96B2EF56-2AC3-
329E-803E-6D6D3CC5444C. In those states in 2017, there
were 1,287 complaints to state departments of agriculture of
dicamba damage; in 2018, there were 1,064 complaints. In
total, according to the Association of American Pesticide
Control Officials, approximately 1,400 complaints of crop
damage resulting from OTT dicamba herbicides were
reported to state regulatory authorities in 2018.
There were substantial differences from state to state in
reported dicamba damage in 2018. Some states imposed
restrictions for the 2018 growing season over and above the
label requirements imposed by the EPA and experienced
substantial decreases in the number of dicamba complaints.
For example, in 2018 Minnesota imposed two additional
restrictions on OTT application of dicamba herbicides:
(1) after June 20, OTT application of dicamba was forbidden;
and (2) before June 20, OTT application of dicamba was
forbidden on days when field temperatures exceeded
85 degrees. In 2017, there were 250 complaints of dicamba-
related crop damage in Minnesota; in 2018, there were 29.
Similarly, in 2018 Arkansas prohibited OTT applications of
dicamba between April 16 and October 31, effectively
banning its use during the growing season. In 2017, there
were 986 complaints of dicamba-related crop damage in
Arkansas; in 2018, there were 200. By contrast, in 2018
Illinois imposed no additional requirements beyond those on
the EPA label. In 2017, there were 245 complaints of
dicamba-related crop damage in Illinois; in 2018, the number
of complaints increased to 330.

NAT’L FAMILY FARM COALITION V. USEPA18
E. 2018 Registration Decision
With the 2016 conditional registrations due to expire in
late 2018, Bayer (Monsanto’s new owner), Corteva, and
BASF sought amendments that would extend the registrations
for another two years. On October 31, 2018, the EPA
announced it would “be granting requests by Bayer
CropScience (formerly Monsanto Company), Corteva
(formerly DuPont), and BASF to amend their existing
conditional registrations that contain expiration dates of
November 9, 2018, and December 20, 2018, respectively.”
On November 1, 2018, pursuant to its October 31
“registration decision,” the EPA issued a conditional
registration to Bayer for its “M1768 Herbicide,” also known
as XtendiMax. On November 2, 2018, the EPA issued a
conditional registration to BASF for its “Engenia Herbicide.”
On November 5, 2018, the EPA issued a conditional
registration to Corteva for its “DuPont FeXapan Herbicide.”
In its October 31, 2018, decision to grant the conditional
registrations, the EPA assessed the benefits and costs of OTT
application of dicamba on DT soybeans and cotton. In
making this assessment, the EPA had before it comments
from state agencies, farm bureaus, trade associations, farmers,
seed companies, crop consultants, non-governmental
organizations, academic and commercial weed scientists, and
various other individuals.
The EPA found two benefits resulting from OTT
application of dicamba. First, dicamba “provides growers
with an additional postemergence active ingredient to manage
difficult to control broadleaf weeds during the crop growing
season, particularly for those situations where herbicide-
resistant biotypes, such as Palmer amaranth, may occur (and

NAT’L FAMILY FARM COALITION V. USEPA19
few alternatives are available).” Second, dicamba “provides
a long-term benefit as a tool to delay resistance [to] other
herbicides when used as part of a season-long weed
management program that includes preemergence (residual)
and postemergence (foliar) herbicides (along with rotations
between different MOA [modes of action]).”
In a separate document prepared by the EPA Office of
Pesticide Programs (“OPP document”) and dated the same
day as the registration decision document, the EPA rejected
two additional benefits that had been proposed by the
registrants. First, the EPA refused to find that OTT
application of dicamba to DT soybean and cotton provided a
comparative advantage in increasing crop yields: “The
Agency finds that dicamba can control weeds that might lead
to yield loss but did not find sufficient information to show it
was more effective than other weed control programs in
reducing yield loss due to weeds.” Second, the EPA refused
to find that OTT dicamba was “a crucial part of maintaining
a conservation tillage program.”
In its October 31 decision document, the EPA also listed
the costs, or risks, of dicamba use, which it characterized as
“impacts.” It first discussed in a single paragraph “[i]mpacts
to non-dicamba tolerant soybean growers.” Citing a
slideshow from Monsanto’s second quarter 2018 financial
results, the EPA wrote that Monsanto had predicted that
40 million acres of DT soybeans would be planted in 2018.
The EPA then inferred that 55 percent of the 2018 soybean
crop would be non-DT and “may potentially be damaged by
very low levels of off-target dicamba.” In the OPP document,
the EPA elaborated that “[i]n general, exposure during the
reproductive growth stages could result in reductions in yield

NAT’L FAMILY FARM COALITION V. USEPA20
. . . , but the Agency does not have information to quantify
this claim.”
The EPA next mentioned in a single paragraph “[i]mpacts
to growers of other dicamba sensitive crops.” It wrote,
“Many other plants are sensitive to low levels of dicamba and
are listed on the dicamba labels.” The EPA named a number
of the dicamba-sensitive crops listed on the labels. It also
noted that the labels list “about 250 weeds—annual and
perennial broadleaf plants and trees— . . . some of which are
desirable in non-crop settings.” In its separate OPP
document, the EPA wrote that “[t]he Agency does not know
the extent of the damage to sensitive crops.”
Finally, the EPA noted in a single paragraph “[i]mpacts
to the landscape.” It wrote, “In 2017 and 2018, state agencies
received reports from growers about incidents alleging
damage to trees and other non-crop plants . . . . Potential
impacts could result in damage to shelterbelts and
windbreaks, as well as desirable plants in public parks and
spaces.”
In its decision authorizing additional two-year conditional
registrations, the EPA imposed more restrictions on OTT
application of dicamba herbicides to DT soybeans and cotton.
The most important additional restrictions were:
(1) application was permitted only between one hour after
sunrise and two hours before sunset (rather than any time
between sunrise and sunset); (2) only two OTT applications
were permitted per crop for soybeans, with the last
application made no later than forty-five days after planting;
(3) only two OTT applications were permitted per crop for
cotton, with the last application made no later than sixty days
after planting; (4) an omnidirectional, in-field fifty-seven-foot

NAT’L FAMILY FARM COALITION V. USEPA21
buffer was required in certain counties to protect listed plant
species; and (5) applications could be made only by certified
applicators.
II. Procedural History
Petitioners previously filed a petition for review of the
EPA’s 2016 registration decision for XtendiMax. Monsanto
filed a motion to intervene, which we granted. Following the
October 2017 label amendments, petitioners filed a motion to
amend their petition for review, which we also granted. We
held oral argument on August 29, 2018.
The EPA’s October 31, 2018, decision to grant additional,
conditional two-year registrations for XtendiMax, Engenia,
and FeXapan was published before we issued an opinion. We
therefore held petitioners’ challenge moot, as the 2016
registration decision no longer had any legal effect. We held
that petitioners’ challenge was not “capable of repetition but
evading review” because there was no reasonable expectation
that petitioners would be subject to the same action—the
2016 registration decision—again. See Pub. Utils. Comm’n
v. FERC, 100 F.3d 1451, 1459–60 (9th Cir. 1996). We
therefore dismissed the petition.
Petitioners filed a new petition for review on January 11,
2019, challenging the EPA’s October 31, 2018, decision.
Monsanto again filed a motion to intervene, which we
granted. We directed the Clerk of the Court to set an
expedited briefing schedule. We held oral argument on
April 21, 2020.

NAT’L FAMILY FARM COALITION V. USEPA22
III. Jurisdiction
FIFRA provides for review in the courts of appeals “as to
the validity of any order issued by the Administrator
following a public hearing” by “any person who will be
adversely affected by such order and who had been a party to
the proceedings.” 7 U.S.C. § 136n(b). A petition for review
must be filed within sixty days of the entry of a challenged
order. Id. “Unless the Administrator otherwise explicitly
provides in a particular order, . . . the . . . date of entry of an
order issued by the Administrator following a public hearing
. . . shall be . . . on the date that is two weeks after it is
signed.” 40 C.F.R. § 23.6.
The Administrator signed the EPA’s decision document
on October 31, 2018. Petitioners filed their petition for
review within two weeks and sixty days of that date, on
January 11, 2019. Intervenor Monsanto argues that we lack
jurisdiction, contending that the petition was filed too late.
The EPA does not join Monsanto’s argument.
Monsanto contends that because the XtendiMax
registration was “issued” and its Master Label marked
“accepted” on November 1, 2018, that date constitutes the
“date of entry,” making the EPA’s decision immediately
reviewable and the petition therefore untimely. We disagree.
Neither the November 1 registration nor the November 1
Master Label acceptance “explicitly provides” that the “date
of entry” of the EPA’s order has been altered. We therefore
conclude that the petition for review was timely filed and that
we have jurisdiction.

NAT’L FAMILY FARM COALITION V. USEPA23
IV. Scope of Petitioners’ Challenge
Petitioners challenge the EPA’s October 31, 2018,
decision to conditionally amend the registrations of
XtendiMax, Engenia, and FeXapan, permitting the OTT use
of dicamba on DT soybeans and cotton for another two years.
The scope of petitioners’ challenge is stated in the first
sentence of their brief: “This petition seeks review of the
October 31, 2018 decision by the United States
Environmental Protection Agency (EPA) to continue the new
uses registrations of the pesticide dicamba on dicamba-
resistant cotton and soybean[.]”
The EPA, however, asserts that petitioners have
challenged only the registration of XtendiMax. It writes in its
brief in a footnote: “Although not at issue here, EPA has
issued registrations for two other dicamba products for the
same uses, Engenia and FeXapan. . . . EPA’s 2018
registration action also amended the Engenia and FeXapan
registrations.” The EPA made no argument in its brief in
support of its contention that only the registration of
XtendiMax is at issue. We could have held that the EPA’s
failure to make an argument in support of its assertion waived
the argument. See Aramark Facility Servs. v. Serv. Emps.
Int’l Union, 530 F.3d 817, 824 n.2 (9th Cir. 2008) (holding
that arguments made in passing and inadequately briefed are
waived). However, out of an abundance of caution and in
recognition of the significant practical importance of the
question, we asked for supplemental briefing from the parties
and intervenor Monsanto.
In their petition for review, filed January 11, 2019,
petitioners challenged an “order . . . announced in a document
signed on October 31, 2018.” They attached as their sole

NAT’L FAMILY FARM COALITION V. USEPA24
exhibit the EPA’s October 31 decision, which they argued
was “intertwined with and extended two earlier registration
decisions by EPA over this same pesticide product,” referring
to the EPA’s 2016 registration decision and the 2017 label
amendment decision. Their opening brief before this court is
consistent with their petition.
The EPA’s October 31, 2018, decision to register the
three dicamba herbicides for OTT application qualifies as an
“order” issued by the EPA. See 7 U.S.C. § 136n(b);
Pollinator Stewardship Council v. EPA, 806 F.3d 520, 528
(9th Cir. 2015) (reviewing “the EPA’s decision to . . .
register” a new insecticide) (emphasis added); cf. 7 U.S.C.
§ 136n(a) (conferring jurisdiction in the district court for
“final actions of the Administrator not committed to the
discretion of the Administrator by law”). For our court to
have jurisdiction, the EPA’s decision must also follow a
“public hearing.” 7 U.S.C. § 136n(b). We conclude that the
2018 registration decision was issued by the EPA “following
a public hearing,” as the decision arises from a notice-and-
comment period held prior to the related 2016 registration
decision. We have construed the term “public hearing”
broadly, holding that it merely “identifies elements essential
in any fair proceeding—notice . . . given of a decision to be
made and presentation to the decisionmaker of the positions
of those to be affected by the decision. By itself, the term
does not connote more.” United Farm Workers of Am. v.
EPA, 592 F.3d 1080, 1082 (9th Cir. 2010). Accordingly, we
have held that “a ‘hearing’ includes proceedings in which
there is no presentation of public argument.” Id. The EPA’s
previous 2016 registration decision followed a “public
hearing,” as conceded by the EPA and Monsanto.

NAT’L FAMILY FARM COALITION V. USEPA25
The EPA and Monsanto make two unconvincing
arguments for a restricted scope of review. First, they both
argue that the other two registrants—Corteva and
BASF—were not given fair notice of the petition, citing
Federal Rule of Appellate Procedure 15(a)(2)(C). They cite
as support for their argument the fact that only Monsanto has
intervened. It is true that the Corteva and BASF have not
intervened. But that does not change the nature of
petitioners’ challenge to the EPA’s October 31, 2018,
registration decision. As even Monsanto admitted in its
supplemental brief to us, while the “petition for review did
not mention the Engenia or FeXapan registration orders[,]
[s]trictly speaking, it did not mention the XtendiMax
registration order either.”
Second, the EPA argues that petitioners’ challenge cannot
include FeXapan and Engenia because “[t]hese other
registrations have administrative records that may overlap
with, but are distinct from the administrative record for
XtendiMax.” However, the administrative record produced
by the EPA includes materials concerning all three products.
Comments in the record pertain to all three herbicides, with
the EPA listing “general comments” in favor of and in
opposition to “OTT registrations of dicamba.” Most
important, the registration decision, including its risk
assessments and cost-benefit analysis, concerned OTT
dicamba products generally and was not registrant-specific.
Indeed, the EPA’s decision document specifies that “[t]hree
registrations . . . are impacted by this decision.”
Petitioners directly challenged the EPA’s entire October
31, 2018, registration decision. The EPA’s subsequent
registrations of the three herbicides followed within days of
its October 31 decision and were premised on that decision.

NAT’L FAMILY FARM COALITION V. USEPA26
We conclude that all three registrations are at issue in the
petition before us.
V. Standard of Review
We will sustain the EPA’s 2018 registration decision
under FIFRA “if it is supported by substantial evidence when
considered on the record as a whole.” 7 U.S.C. § 136n(b).
The substantial evidence standard requires that we “affirm the
EPA’s finding where there is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion even if it is possible to draw two inconsistent
conclusions from the evidence.” Nat. Res. Def. Council v.
EPA, 857 F.3d 1030, 1036 (9th Cir. 2017) (internal quotation
marks omitted). We “give due deference to EPA’s findings,”
but may uphold its decision only “on the basis articulated by
the agency itself.” Nat. Res. Def. Council v. EPA, 735 F.3d
873, 877 (9th Cir. 2013).
VI. Discussion
FIFRA regulates pesticide (including herbicide) use,
sales, and labeling. 7 U.S.C. §§ 136–136y. The statute is
administered by the EPA, with states given primary
enforcement responsibility for pesticide use violations. Id.
§§ 136a(a), 136w-1; see Taylor AG Indus. v. Pure-Gro,
54 F.3d 555, 559 (9th Cir. 1995). “FIFRA uses a cost-benefit
analysis to ensure that there is no unreasonable risk created
for people or the environment from a pesticide.” Pollinator
Stewardship Council, 806 F.3d at 522–23 (internal quotation
marks omitted).
The EPA wrote in its October 31, 2018, decision that it
was taking action under Section 3(c)(7)(B) of FIFRA when it

NAT’L FAMILY FARM COALITION V. USEPA27
approved the registrations for XtendiMax, Engenia, and
FeXapan. See 7 U.S.C. § 136a(c)(7)(B). That section
authorizes the Administrator of the EPA to “conditionally
amend” the registration of a pesticide to allow for new uses.
Id. Section 136a(c)(7)(B) provides in relevant part:
The Administrator may conditionally amend
the registration of a pesticide to permit
additional uses of such pesticide
notwithstanding that data concerning the
pesticide may be insufficient to support an
unconditional amendment, if the
Administrator determines that (i) the applicant
has submitted satisfactory data pertaining to
the proposed additional use, and (ii) amending
the registration in the manner proposed by the
applicant would not significantly increase the
risk of any unreasonable adverse effect on the
environment.
An “unreasonable adverse effect on the environment”
includes “any unreasonable risk to man or the environment,
taking into account the economic, social, and environmental
costs and benefits of the use of any pesticide.” Id. § 136(bb).
We consider in turn the two requirements for conditional
amendments under § 136a(c)(7)(B): determinations that
(i) the applicant has submitted “satisfactory data,” and (ii) the
amendment will not “significantly increase the risk of any
unreasonable adverse effect on the environment.” We
conclude that substantial evidence does not support the EPA’s
conclusion that both statutory prerequisites were satisfied.

NAT’L FAMILY FARM COALITION V. USEPA28
A. “Satisfactory Data” Submitted by the Applicant
We begin by considering whether substantial evidence
supported the EPA’s conclusion that the “applicant has
submitted satisfactory data pertaining to the proposed”
conditional registrations. The EPA suggests that these “data”
include registrant-submitted studies, the broader universe of
academic studies and datasets, and incident reports. We
accept for present purposes the EPA’s interpretation of the
term “data.”
1. Monsanto’s Studies
In support of its 2018 application, Monsanto submitted
the results of several of its own field studies evaluating
XtendiMax. Some of the studies had been submitted in
support of Monsanto’s application for conditional registration
in 2016. Some of the studies were new. All of the studies
were described in a “white paper” Monsanto submitted to the
EPA in support of its 2018 application.
a. Field Studies in Support of the 2016 Registration
Monsanto conducted its own studies of its reformulated
dicamba herbicide prior to its application for conditional
registration in 2016. Monsanto did not at that time make its
herbicide available for independent studies. On a 3.4-acre
field in Georgia and a 9.6-acre field in Texas, Monsanto
tested XtendiMax (with “VaporGrip Technology”) as well as
M-1691, a dicamba-based formulation less volatile than older
dicamba herbicides but lacking “VaporGrip Technology.” In
its 2018 white paper, Monsanto described these studies as
having “tested real-world volatility potential” of XtendiMax.
Based in part on results of these tests, as reported by

NAT’L FAMILY FARM COALITION V. USEPA29
Monsanto, the EPA granted the first two-year conditional
registration for OTT dicamba, concluding that the benefits of
its application to DT soybeans and cotton outweighed any
risks because the label restrictions were “expected to
eliminate any offsite exposures and effectively prevent risk
potential to people and non-target species.” As described
above, and as the EPA later acknowledged, the EPA’s
conclusion was incorrect.
b. Field Studies in Support of the 2018 Registration
In support of its 2018 application, Monsanto conducted
five additional studies measuring the volatility of XtendiMax.
In its white paper, Monsanto described these studies as
“confirm[ing] information provided prior to 2016.” The
“information provided prior to 2016” included, of course, the
studies submitted by Monsanto in support of its 2016
application. Relying in part on those studies, the EPA had
mistakenly concluded that OTT application of XtendiMax
created “minimal risks, if they exist at all.” Monsanto further
described the new studies as “mimic[king] many ‘real world’
commercial applications and captur[ing] the full range of
potential conditions that might cause volatility.”
The first additional study was conducted in October 2016
in Texas on a bare 4.6-acre field, and a post-emergent 9.1-
acre DT cotton field. The second study was conducted in
December 2017 on a post-emergent thirty-seven-acre soybean
field in Australia. The third study was conducted in May
2018 on a post-emergent twenty-six-acre soybean field in
Arizona. The fourth study was conducted in May and June
2018 on a post-emergent, nine-acre DT soybean field in
Missouri. The fifth study was conducted in June and July
2018 on a post-emergent one-hundred-acre soybean field in

NAT’L FAMILY FARM COALITION V. USEPA30
Nebraska. All five studies measured air samples to determine
the flux rate of volatilized dicamba. (Flux rate is a
measurement of volatilized dicamba during a specific time
period.) In its white paper, Monsanto described each of the
five studies as concluding that “[t]he highest peak flux rate
[was] . . . consistent with peak flux values from the Texas and
Georgia studies submitted prior to the 2016 XtendiMax
registration.”
Monsanto also conducted a spray drift study in
conjunction with its volatility study on the Arizona soybean
field. It reported the result of its study as “consistent with
and confirmatory of . . . EPA’s 2016 determination that no
spray drift would occur outside of the 110-ft. buffer area in
amounts that could have an effect on plant height.”
2. Telephone Reports to Monsanto
Monsanto reported in its white paper that it had received
“hundreds of telephone calls regarding alleged off target
movement” of dicamba during the 2017 and 2018 growing
seasons. Monsanto reported that by July 19, 2017, it had
received 1,002 calls. Monsanto reported that as of the same
date on 2018 it had received 468 calls. Of the 468 calls in
2018, herbicide applicators had made 172 calls, and “non-
applicators” had made 296. Monsanto reported that it had
evaluated 450 of the calls. Monsanto concluded that
XtendiMax was never, or almost never, at fault. It wrote,
“XtendiMax volatility caused few if any incidents of off-
target movement. Indeed, Monsanto has identified only eight
incidents (less than 1%) where volatility even possibly could
have been the cause—and none of those were confirmed to be
caused by volatility as all eight incidents had other potential
causes as well.” (Emphasis in original.)

NAT’L FAMILY FARM COALITION V. USEPA31
Monsanto absolved XtendiMax based primarily on the
fact that many of the fields with alleged dicamba damage
were located fifty to one hundred feet away from corn fields.
Monsanto speculated that other herbicides, such as older
formulations of dicamba, had been used on the corn fields
and had drifted onto adjacent non-DT soybean fields. This
explanation, however, is not supported by the data.
Older, non-XtendiMax dicamba has been used on post-
emergent corn fields for decades, and complaints of dicamba
damage to adjacent crops had been consistently low.
Monsanto needed to explain why, if herbicide use on corn
fields was at fault, the number of herbicide drift complaints
had skyrocketed in 2017 and 2018, after XtendiMax,
Engenia, and FeXapan were registered for post-emergent use.
Monsanto theorized, without supporting evidence, that
because of the increased publicity surrounding the new
dicamba formulations, the applicators and farmers who
complained of dicamba damage were “noticing—and
reporting for the first time—effects that likely have been
present for years.” There is no indication in the white paper
that Monsanto ever sought to confirm its theory by asking
growers on the adjacent corn fields whether, when, and in
what manner, they might have used dicamba. Moreover, a
2014 U.S. Department of Agriculture report indicates that use
of the older formulations of dicamba on corn had been falling
in recent years, as corn growers turned to newer herbicides.
Between 1993 and 1997, dicamba had been used on between
21 and 29 percent of corn acreage; in 2012, it was used on
only about 12 percent of corn acreage.

NAT’L FAMILY FARM COALITION V. USEPA32
3. Other Field Studies
In making its 2018 registration decision, the EPA also
considered data from research conducted by the University of
Arkansas, the University of Wisconsin-Madison, Purdue
University, Michigan State University, and the University of
Nebraska. These studies were designed to evaluate spray
drift and volatility of dicamba when applied to fields of ten to
forty acres. The EPA also looked at a series of small-scale
field studies (0.17 to 3.5 acres) conducted in Arkansas,
Indiana, Missouri, Nebraska, and Tennessee. Studies in both
the larger-scale and small-scale settings assessed both
Engenia and XtendiMax. (XtendiMax and FeXapan involve
the same form of dicamba and both have “VaporGrip
Technology.”) From the field data, the EPA concluded that
even the newer dicamba formulations could volatilize and
drift, resulting in visual injury to plants.
4. Summary
The applicant data before the EPA ahead of the 2018
conditional registrations consisted in part of studies that
Monsanto characterizes as merely confirming data used to
support the 2016 registrations. The 2016 registrations, of
course, resulted in millions of acres of reported dicamba
damage. But we need not decide whether substantial
evidence supports the EPA’s conclusion that “satisfactory
data” had been submitted. See 7 U.S.C. § 136a(c)(7)(B)(i)
(requiring that the “applicant . . . submit[] satisfactory data
pertaining to the proposed additional use”). FIFRA requires
both “satisfactory data” and a finding that amendment of the
registration will not “significantly increase the risk of any
unreasonable adverse effect on the environment.” Id.
§ 136a(c)(7)(B)(i)–(ii). We turn now to this second

NAT’L FAMILY FARM COALITION V. USEPA33
requirement and conclude that the EPA’s determination that
the requirement was satisfied is not supported by substantial
evidence.
B. Whether Amendment “Significantly Increase[s] the
Risk of Any Unreasonable Adverse Effect on the
Environment”
To approve a conditional amendment of a registration for
an already registered pesticide, the Administrator of the EPA
must find under FIFRA that the amendment “would not
significantly increase the risk of any unreasonable adverse
effect on the environment.” Id. Such effects include “any
unreasonable risk to man or the environment, taking into
account the economic, social, and environmental costs and
benefits of the use any pesticide.” Id. § 136(bb). In its
October 31, 2018, decision document, the EPA concluded
“that extending the OTT use of dicamba for two years on
dicamba-tolerant cotton and dicamba-tolerant soybeans in the
manner authorized under this decision will not cause
unreasonable adverse effects on the environment.”
As described above, the EPA found two benefits resulting
from the 2018 registrations—providing soybean and cotton
growers an additional tool for managing difficult-to-control
weeds, and delaying weed resistance to other herbicides.
Ample evidence supports these two findings. Notably,
however, the EPA in 2018 refused to find as a benefit that
OTT application of dicamba herbicides increased crop yields
by comparison to application of other herbicides.
Against those two benefits, the EPA balanced the risks,
which it characterized as “impacts.” It divided those impacts
into three categories—impacts to non-DT soybean growers;

NAT’L FAMILY FARM COALITION V. USEPA34
impacts to growers of other dicamba-sensitive crops; and
impacts to the “landscape.”
A review of the record shows that the EPA substantially
understated the risks that it acknowledged. The review also
shows that the EPA entirely failed to acknowledge other
risks.
1. Understatement of Acknowledged Risks
In both the registration decision document signed on
October 31 and the OPP document dated the same day, the
EPA substantially understated the risks to non-DT plants by
OTT application of dicamba herbicides.
a. DT Seed Acreage
First, the EPA understated the DT seed acreage that had
been planted in 2018, and therefore the amount of dicamba
herbicide that had been applied to post-emergent crops that
year. The EPA relied on a Monsanto prediction that
40 million acres of its DT soybeans would be planted in 2018.
This reliance was improper. The EPA’s decision document
was signed on October 31, at the end of the growing season.
By then, the EPA was in a position to know the actual
acreage of DT seeds that had been planted. In its white paper,
Monsanto had written that 56 million acres of its DT seeds
had been planted in 2018. It did not specify what share came
from DT soybeans and what share came from DT cotton. But
the record elsewhere indicated that DT soybeans comprised
as many as 50 million of those acres. In other words, the
EPA underestimated by as much as 25 percent the amount of
DT soybeans planted and, commensurately, the amount of
dicamba herbicides applied in 2018.

NAT’L FAMILY FARM COALITION V. USEPA35
b. Under-Reporting or Over-Reporting of Dicamba
Damage
Second, the EPA’s conclusion that complaints to state
departments of agriculture of dicamba damage could have
either under-reported or over-reported the actual amount of
damage is not supported by substantial evidence. The record
clearly shows that complaints understated the amount of
dicamba damage.
A graph included in the EPA’s decision document shows
complaints made to state agriculture departments in sixteen
of the thirty-four states in which OTT application of dicamba
was authorized. The graph covers the period from 2013
through 2018 and includes all complaints of herbicide drift,
not limited to dicamba. According to the graph, herbicide
drift complaints consistently averaged slightly fewer than
1,000 per year from 2013 through 2015. The number of
complaints rose to a little under 1,250 during 2016—the year
DT soybeans and cotton became available for planting and
were reportedly sprayed with dicamba herbicides not
approved for OTT use. In 2017, the first year that OTT
application of dicamba was allowed, there were more than
3,000 drift complaints. In 2018, there were more than 2,250
such complaints.
The EPA has no explanation for the spike in complaints
in 2017 and 2018 other than the new conditional registration
of dicamba for OTT application. The EPA minimized the
significance of the increase in complaints by crediting a view
that the number of complaints could reflect an over-reporting
of damage. It wrote in its registration decision that many
industry stakeholders believed that the number of complaints
under-reported the amount of dicamba-caused damage, but

NAT’L FAMILY FARM COALITION V. USEPA36
that “others” believed instead that the complaints over-
reported the amount of damage:
According to the AAPCO [the Association of
American Pesticide Control Officials],
university researchers, and some growers, the
number of cases reported to state agencies
may be substantially lower than the actual
incidents . . . observed in the field . . . . Others
believe that there may be issues of
overreporting.
(Emphasis added.) The EPA wrote to the same effect in its
OPP document, “The number of incidents may not accurately
represent the extent of dicamba-related damage; incidents
may be under- or over-reported.”
The EPA did not specify in the text of its registration
decision who the “others” (plural) were. However, it
appended to the text a footnote citing only the Monsanto
white paper. That is, Monsanto, and only Monsanto, was the
“others.” As noted above, Monsanto wrote in its white paper
that it had concluded that none, or almost none, of the
damage reported in the 450 telephone calls it had evaluated
in 2018 had been caused by the newly registered dicamba
herbicides. Monsanto speculated that the damage was largely
caused by other herbicides, including the older formulations
of dicamba, applied on nearby corn fields; speculated that the
professional applicators and farmers who called complaining
of dicamba damage had had such damage in prior years; and
speculated that the callers either had not noticed the damage
previously or had not attributed it to dicamba. (Recall that
dicamba use on corn had been decreasing in recent years, and

NAT’L FAMILY FARM COALITION V. USEPA37
that dicamba damage is easily detected by its signature “leaf
cupping” on affected plants.)
The EPA’s purported agnosticism as to whether dicamba
damage was under- or over-reported is contradicted by
overwhelming record evidence that dicamba damage was
substantially under-reported. For example, during the
summer of 2018, Professor Robert Hartzler at Iowa State
University (“ISU”) conducted a survey of university field
agronomists that was forwarded to Baris of the EPA.
Hartzler recounted: “We know the reported incidences
represent a very small fraction of total drift cases as farmers
are reluctant to involve regulatory agencies. The majority of
ISU Extension and Outreach agronomists reported that Iowa
Department of Agriculture and Land Stewardship (IDALS)
was contacted in less than 25% of the dicamba cases, and
nobody reported IDALS was contacted in the majority of
cases.” In a September 2017 article in the record from the
Progressive Farmer, Carrie Leach, Quality Assurance
Director for the Office of Indiana State Chemist, estimated
that only one out of ten farmers affected by dicamba injury
actually filed formal complaints with her office. In
September 2018, before the EPA issued its decision
document, Baris himself gave a PowerPoint presentation in
which he admitted, “Not all reports of crop damage were
reported to State Departments of Agriculture.” If complaints
to state departments of agriculture under-reported dicamba
damage, the amount of actual dicamba damage was, of
course, even greater than what the graph in the EPA’s 2018
decision document captured.

NAT’L FAMILY FARM COALITION V. USEPA38
c. Failure to Quantify or Estimate Dicamba Damage
Third, the EPA refused to quantify or estimate the amount
of damage caused by OTT application of dicamba herbicides,
or even to admit that there was any damage at all. When
referring to dicamba damage to non-DT soybeans, the EPA
wrote in its 2018 decision document only that such soybeans
“may potentially be damaged.” (Emphasis added.) In the
accompanying OPP document, it wrote with respect to such
soybeans, “In general, exposure during the reproductive
growth stages could result in reductions in yield . . . , but the
Agency does not have information to quantify this claim.”
(Emphasis added.) When referring to other non-DT crops,
the EPA identified a number of such crops by name, but did
not write that any had been damaged by dicamba. When
referring to dicamba-caused damage to the “landscape,” it
wrote only of “incidents alleging damage” and of “[p]otential
impacts [that] could result in damage.” (Emphasis added.)
The EPA had information from which it could have
quantified dicamba damage, even if it could not have
calculated with precision the reduction in yield caused by the
damage. For example, Baris had conceded in his September
2018 PowerPoint presentation that in 2017 “more than
3.6 million” acres of non-DT soybeans had been damaged by
dicamba. Indeed, in its 2018 registration decision, the EPA
itself referred to the 3.6 million figure. Bradley of the
University of Missouri, the source of the 3.6 million figure,
had reported that by mid-July 2018, approximately
1.1 million acres of non-DT soybeans had already been
damaged in eighteen states.
The EPA also had a great deal of qualitative information
about extensive dicamba damage during both 2017 and 2018.

NAT’L FAMILY FARM COALITION V. USEPA39
We focus here only on the damage reported in 2018. In
comments forwarded by email to Baris, Bradley wrote that as
of June 1, “university weed scientists and state Department of
Agriculture representatives” had reported dicamba injury to
“specialty crops, vegetable, and ornamental, fruit, and shade
trees.” Dr. Ford Baldwin of Practical Weed Consultants,
LLC in Arkansas wrote in a letter forwarded to Baris on June
25, “Once again in 2018, large acreages of non-dicamba-
tolerant soybeans in eastern Arkansas are affected by this
herbicide as well as many vegetables. In addition, most trees
in the countryside and towns are cupping and even dying
following multiple years of exposure.” In a Farm Progress
news article on June 26, Bradley is quoted as saying, with
respect to dicamba damage in the “bootheel” of Missouri,
“From what I can tell, . . . if you don’t have Xtend soybean,
your crop is going to be cupped from one end to the other.
That’s not a surprise because we’ve seen that for the past two
seasons.”
In a July 2 email forwarded to Baris, Duane Simon, a
Supervisor at the Kansas Department of Agriculture, wrote,
“So you know, for the last two weeks we have been over run
with dicamba complaints in Kansas. Most of them have been
on the Eastern side of the state.” Andrew Thostenson, a
pesticide program specialist at North Dakota State University,
wrote in a July 23 email to Baris, “What we now know, in
2018, is that minimizing off target movement of dicamba to
a reasonable level is NOT possible. If you take 2017[] off the
board, and only look at what has happened in 2018, I think
this level of movement is completely unacceptable.” A July
20 article in DTN’s Progressive Farmer, forwarded to an
EPA official on July 25, reported extensive dicamba damage.
Damage suffered by Mike Hayes, a Tennessee resort owner,
was one of many examples: “Last year, Hayes experienced

NAT’L FAMILY FARM COALITION V. USEPA40
wave after wave of dicamba exposure. It wiped out the
resort’s garden—which supplies the on-site restaurant—three
times before Hayes gave up. He estimates it killed 20% of
the young trees he planted . . . . This year, he estimates he has
been hit eight separate times by dicamba. He expects five
cypress trees to die this year . . . .”
In an August 8 article in Delta Farm Press, Professor
Larry Steckel of the University of Tennessee wrote, “[T]he
drift we . . . saw this June and July in Tennessee with
dicamba in the new use pattern in Xtend crops is like nothing
I have ever seen before. I have never seen a herbicide that
has so easily and frequently slipped the leash. Nor have I
seen a herbicide that, once off the leash, would roam so far.
Dicamba drift for the past three years has often travelled a
half mile to three-quarters of a mile and, all too frequently,
well beyond that. . . . My best estimate is that Tennessee has
roughly 100,000 acres of non-dicamba tolerant soybeans
planted and about 40 percent of them are currently showing
dicamba injury.” Hartzler of ISU wrote in August 15 of his
survey of ISU field agronomists: “Half of the agronomists
stated the number of soybean acres damaged by dicamba was
similar to 2017, whereas the remainder were split between
fewer acres and more acres damaged in 2018 than 2017.
When I’ve asked commercial agronomists the same question,
the range of responses was similar to those of my extension
colleagues.”
2. Failure to Acknowledge Risks
The EPA not only substantially understated the risks it
acknowledged, as just described. It also entirely failed to
acknowledge other risks, including those it was statutorily
required to consider, as we describe below.

NAT’L FAMILY FARM COALITION V. USEPA41
a. Substantial Non-Compliance with Label Restrictions
Extensive evidence in the record indicates that there is a
risk of substantial non-compliance with the EPA-mandated
label for the 2019 and 2020 growing seasons. Non-
compliance with the restrictions, of course, will result in
dicamba damage. The EPA entirely failed to acknowledge
this risk.
As detailed above, there have been three sets of EPA-
mandated label restrictions for OTT use of XtendiMax,
Engenia, and FeXapan. The initial set was for the 2017
growing season, after the herbicides were first conditionally
registered; the second was for the 2018 growing season, after
the herbicide manufacturers “volunteered” to amend the
label; and the third was for the 2019 and 2020 growing
seasons, after the conditional registrations were extended for
two years. The labels became increasingly restrictive and,
correspondingly, more difficult to follow.
The 2018 label, for use during the 2019 and 2020 growing
seasons, is hardly a “label” as that term is usually understood.
It is forty pages long, with myriad instructions and
restrictions. The 2018 label provides, inter alia,
(1) application is permitted only between one hour after
sunrise and two hours before sunset; (2) application is
prohibited if the wind speed is below three miles per hour or
above ten miles per hour; (3) application is prohibited during
temperature inversions; (4) application is prohibited if rain
resulting in soil runoff is expected in the following twenty-
four hours; (5) application is prohibited when the wind is
blowing toward “adjacent” non-DT soybean and cotton, as
well as other dicamba-sensitive crops; (6) there must be an
in-field, downwind buffer of at least 110 feet; (7) in certain

NAT’L FAMILY FARM COALITION V. USEPA42
counties, there must be an omnidirectional fifty-seven-foot
in-field buffer; (8) spraying equipment may not exceed a
ground speed of fifteen miles per hour; (9) the spray boom
can be no more than twenty-four inches above the target weed
or the crop canopy; (10) for DT soybeans, only two
applications per crop are permitted, with the last application
no later than forty-five days after planting; (11) for DT
cotton, only two applications per crop are permitted, with the
last application no later than sixty days after planting; and
(12) all applicators must be certified and have dicamba-
specific training.
Even before the additional restrictions were added to the
2018 label, many industry professionals had been dismayed
by the difficulty in complying with the complex and onerous
label requirements. By October 2018, there was substantial
evidence that even conscientious applicators had not been
able consistently to adhere to the label requirements.
Dave Coppess, an executive vice president at HeartLand
Co-op in Iowa, was interviewed for an April 17, 2018, article
in Agribusiness Global. The article appeared in Baris’
Google Alert for “dicamba,” and otherwise would have been
accessible to him. Coppess said of the label that had been in
place for the 2017 growing season, “This was probably the
most complex label I had ever seen in my 40-year career
. . . .” “Last year, our sales manager calculated that based on
the [2017] label, we only had 44 hours of application time
that our rigs would have been on label. That’s the old label.
Now, the new label is going to be even more restrictive . . . .”
A question submitted to Keigwin of the EPA in April
2018 by an attendee of a dicamba webinar for the
Agricultural Retailers Association asked, “There doesn’t

NAT’L FAMILY FARM COALITION V. USEPA43
appear to be any way for an applicator to be 100% legal in
their application. What is an applicator to do in this no-win
situation?” Brian Major, a grain producer in Fulton County,
Kentucky, wrote in an August 15, 2018, email to Keigwin,
describing a DT soybean field surrounded by non-DT crops:
“[T]here is no legal way to spray this field. You can’t apply
dicamba with a wind speed of 0 MPH (must be 3–10 MPH)
and you can’t apply it when the wind is blowing towards a
sensitive crop. So there is really no way to use the products.”
He continued: “We here in west Kentucky are also seeing a
lackadaisical approach from the Ky Dept of Agriculture on
enforcement of the label, the fines for label violation are
viewed among the violators ‘as the cost of doing business’ or
‘it’s cheaper to pay the fine than lose yield by not spraying.’”
An August 21, 2018, National Public Radio interview with a
vineyard owner, circulated as an attachment to an internal
EPA email, reported: “Longtime winemaker Bobby Cox says
a 10-mph day in blustery West Texas is basically a fairy tale.
‘You can’t do it,’ he says, laughing uproariously. ‘Your fairy
godmother has to pull out a wand, tap the pumpkin and turn
it into a carriage.’”
In a July 20, 2018, article in a Purdue University
newsletter forwarded by Baris to his EPA colleagues, Purdue
Professor Bill Johnson and Weed Science Program Specialist
Joe Ikley calculated the difficulty in complying with the 2017
label during the 2018 growing season. They ignored the
label’s prohibition on application when rain is forecast in the
next twenty-four hours, instead relying on actual rainfall
events. Taking into account the restrictions based on wind
speed and temperature inversions, they calculated for a
location near Purdue’s Indiana agriculture station that there
were only forty-seven hours in the entire month of June 2018
during which OTT application of dicamba would have been

NAT’L FAMILY FARM COALITION V. USEPA44
legal. There were only two days of the month in which
application during an eight-hour day would have been
possible—eleven hours during one day, and eight hours
during another. The remaining hours were scattered
throughout the rest of the month: one hour (one day); two
hours (one day); three hours (three days), five hours (two
days); six hours (one day). Johnson and Ikley concluded that
the data “reinforces the fact that we do not have very many
hours in the real world where we can be completely
compliant with the restrictions on the new dicamba product
labels.” Based in part on this data, the Office of Indiana State
Chemist observed that “the 2017 and 2018 dicamba label
directions have been extremely challenging for a trained
applicator to comply with completely.”
The Illinois Fertilizer and Chemical Association
conducted a survey of its members in July and August 2018.
One question was: “As a commercial applicator, do you feel
that your operators were able to follow the dicamba product
label effectively this year?” Approximately 66 percent of the
respondents answered “yes”; approximately 28 percent
answered “most of the time”; and approximately 6 percent
answered “no.” Comments appended to the survey results
included: “Conditions that allow for a technically legal
application is very small”; “Weather is never right. Too
windy, too hot, to[o] humid—we can’t win”; “Very light,
shifting winds made it impossible to ‘always be right’ during
the time when we needed to spray”; and “I believe it is
impossible to make an on-label application as the label is
written . . . .”
The comments, emails, and news articles received by the
EPA were directed to the labels in place for the 2017 and
2018 growing years—the period leading up to the EPA’s

NAT’L FAMILY FARM COALITION V. USEPA45
2018 registration decision challenged here. As described
above, the EPA added even more restrictions in October
2018. Two changes are particularly noteworthy. First, during
2018, OTT application of dicamba to DT soybeans and cotton
was legal from sunrise to sundown. During 2019 and 2020,
the application period will be reduced by three hours every
day, now running from one hour after sunrise to two hours
before sunset. Second, in 2018, there was no days-after-
planting prohibition. In 2019 and 2020, farmers will have to
apply OTT dicamba within sixty days of planting DT cotton,
and within forty-five days of planting DT soybeans. Many
applicators found it difficult or impossible to comply with the
2017 label during the 2018 growing season. Compliance with
the 2018 label during the 2019 and 2020 growing seasons will
be even more difficult.
In its October 31, 2018, decision approving OTT use of
dicamba on DT soybeans and cotton, the EPA nowhere
acknowledged the evidence in the record showing there had
been substantial difficulty in complying with the mitigation
requirements of earlier labels. Nor did it acknowledge the
likelihood that the additional mitigation requirements
imposed by the 2018 label would increase the degree of non-
compliance.
b. “Economic, Social, and Environmental Costs”
FIFRA requires the EPA to consider, as part of a cost-
benefit analysis, “any unreasonable risk to man or the
environment, taking into account the economic, social, and
environmental costs and benefits of the use of any pesticide.”
7 U.S.C. § 136(bb) (emphasis added). The EPA entirely
failed to acknowledge risks of economic and social costs.

NAT’L FAMILY FARM COALITION V. USEPA46
1. Economic Cost
The EPA entirely failed to acknowledge an economic cost
that is virtually certain to result from the conditional
registrations of the dicamba herbicides for OTT application.
The EPA knew that Monsanto’s glyphosate-resistance trait,
and accompanying glyphosate herbicide, had achieved a near-
monopoly. More than 90 percent of soybeans planted in 2008
were grown from patented glyphosate-tolerant seeds.
Patented dicamba-tolerant seeds and the three new dicamba
herbicides appear to be well on their way to the same degree
of market dominance. By 2017, soybeans with Monsanto’s
dicamba-tolerance trait comprised a quarter of U.S. soybeans,
and more than 6 percent of all U.S. cropland. By 2018,
Monsanto’s dicamba-tolerance trait was in approximately
50 percent of U.S. soybeans. Use of the three dicamba
herbicides has increased commensurately.
Many farmers have felt, and will continue to feel,
compelled by the increased planting of DT soybeans, and the
accompanying increased use of OTT dicamba, to change
from non-DT to DT soybeans. Rob Robinson, CEO and
owner of Rob-See-Co in Waterloo, Nebraska, wrote in a
September 14, 2017, letter to the Administrator of the EPA,
“[T]he amount of damage I am hearing about from my
soybean seed customers and sales force is alarming. Even
more alarming is the number of my customers who have told
me they will plant all Xtend varieties, instead of my [non-DT]
seed, as a defensive measure against damage from neighbors
who will use Xtend varieties and spray the approved dicamba
product. . . . I find this issue incredibly anticompetitive . . . .”
Joe Merschman, president and CEO of Merschman Seeds,
Inc. in West Point, Iowa, wrote in a September 25, 2018,
email to Keigwin of the EPA, “This year we are hearing this

NAT’L FAMILY FARM COALITION V. USEPA47
statement over and over again from our farmer customers
when it comes to planning their soybean seed purchases for
2019[:] ‘I guess I will have to plant dicamba resistant
soybeans next year to avoid the off target injury. I cannot
afford to keep getting my soybeans damaged from dicamba.’”
Merschman wrote that market research from the Iowa-
Illinois-Missouri area indicated that 59 percent of soybean
acres were expected to be dicamba-tolerant in 2019. Sonny
Beck, CEO of the seed company Beck’s Superior Hybrids,
wrote to Keigwin on July 27, 2018, advocating that the new
dicamba formulations be restricted to pre-plant use only even
though he himself had sold more than one million bags of
Xtend soybean seeds in 2018. Among his reasons, Beck cited
concern that other seed technologies wouldn’t get a chance to
“make an impact on weed resistance,” as farmers increasingly
adopted DT seeds out of fear over dicamba drift.
Professor David Ripplinger of North Dakota State
University recounted in a February 2018 article in Agweek,
“The farmers I talk to are almost all going to grow dicamba
soybeans this year because they don’t want to be exposed to
the risk.” Steckel of the University of Tennessee recounted
in his August 2018 article, “Many growers have told me they
simply gave up trying to grow non-Xtend soybeans because
they had repeatedly seen dicamba injury in past years—often
multiple times in the same year.” In his letter forwarded to
the EPA in June 2018, Dr. Baldwin wrote, “Dicamba has a
chemistry problem that likely cannot be fixed, or at least no
evidence has been provided that it can be successfully
applied. If it can, it will only be through advances in
chemistry. As the technology currently exists, renewing the
cotton and soybean registrations will leave the industry no
choice but to plant 100% of the soybean acreage [with] this
technology.”

NAT’L FAMILY FARM COALITION V. USEPA48
Extending the conditional registrations for OTT use of
XtendiMax, Engenia, and FeXapan creates a substantial the
risk that DT soybeans, and possibly DT cotton, will achieve
a monopoly or near-monopoly. The likely anti-competitive
effect of the registrations would impose a clear economic
cost, but the EPA at no point identified or took into account
this cost.
2. Social Cost
The EPA also entirely failed to acknowledge a social cost
that had already been experienced and was likely to increase.
The record contains extensive evidence that OTT application
of dicamba herbicides has torn apart the social fabric of many
farming communities. Major, the Kentucky grain producer,
wrote in his August 2018 email to Keigwin: “This used to be
a pretty close area, with neighbors helping neighbors. This
chemical has changed this for quite a few growers. The
applicators of dicamba are damaging their neighbor’s crops
and when they are asked about it the normal answer is, ‘You
can’t prove it,’ or ‘I didn’t do it[.]’” The July 20, 2018,
article in Progressive Farmer recounted, “The rise in off-
target dicamba injury has strained the social fabric of rural
communities, said University of Illinois weed scientist Aaron
Hager. ‘It’s pitting neighbor against neighbor,’ he said.
‘Farmers threatening other farmers. I’ve never seen this
before over the use of technology.’” The article recounted
further, “[An] Illinois homeowner, who spoke on the
condition of anonymity to protect her from reprisals in her
community, has suffered severe damage to a wide variety of
trees . . . as well as ornamental plants, shrubs and a vegetable
garden.” Samples sent to a private laboratory tested positive
for dicamba. “‘These are 100-year old oaks,’ she said.
‘We’re senior citizens and we don’t have the time left in our

NAT’L FAMILY FARM COALITION V. USEPA49
lives to plant new trees and watch them get even halfway to
maturity. . . . We are farmers, too . . . . We live in a rural
area with generations of families that have been here for years
and years. We’ve known them all our lives. But when we
talk to the farmers, they don’t seem to care that much.
There’s no apologies, no offers to help, nothing.’” In a
comment to the Illinois Fertilizer and Chemical Association’s
August 2018 survey, one respondent noted of dicamba use,
“In 43 years of business I have never seen a more divisive
product among neighbors both farm and non-farm.” Another
respondent wrote, “This technology cannot continue as is if
we ever wish to raise a susceptible crop or maintain healthy
relationships with our residential and environmental
neighbors.” A farmer in Arkansas was shot and killed in an
argument over dicamba damage in 2016.
The severe strain on social relations in farming
communities where the new dicamba herbicides are being
applied is a clear social cost, but the EPA did not identify and
take into account this cost.
C. Substantial Evidence Does Not Support the EPA’s
Decision
Considering the record as a whole, we conclude that
substantial evidence does not support the EPA’s October 31,
2018, decision to grant conditional registrations to
XtendiMax, Engenia, and FeXapan for OTT application on
DT soybeans and cotton. The EPA found two benefits from
the uses, which were amply supported by evidence in the
record. But the EPA failed to perform a proper analysis of
the risks and resulting costs of the uses.

NAT’L FAMILY FARM COALITION V. USEPA50
The EPA substantially understated the costs it
acknowledged. The EPA substantially understated the
acreage planted with DT soybeans in 2018 and the resulting
use of dicamba in that year. It recounted in its decision
document that Monsanto had “predicted” that 40 million
acres of DT soybeans would be planted in 2018, even though
record evidence then before the EPA indicated the actual DT
soybean acreage was much higher and that the combined DT
soybean and cotton acreage was higher still. Further, the
EPA recognized that there had been an enormous increase in
dicamba complaints in 2017 and 2018, but it purported to be
agnostic as to whether those complaints under-reported or
over-reported the amount of dicamba damage. In fact, record
evidence shows that the complaints substantially under-
reported the actual amount of damage. Finally, the EPA
substantially understated the amount of dicamba damage
during the 2017 and 2018 growing years, characterizing the
damage as “potential” and “alleged,” and claiming there was
insufficient data from which to estimate the amount of
damage. In fact, record evidence shows that OTT application
of dicamba herbicides in 2017 and 2018 had caused
enormous and unprecedented damage.
The EPA also entirely failed to acknowledge other costs.
The EPA entirely failed to acknowledge the substantial
degree of non-compliance with the 2017 label, and the
likelihood of an even greater degree of non-compliance with
the 2018 label. Further, the EPA entirely failed to recognize
the economic cost imposed by the coercion of non-DT
farmers to convert to DT crops, and the resulting anti-
competitive effect of that coercion. Finally, the EPA entirely
failed to recognize the enormous social cost to farming
communities where use of dicamba herbicides had turned
farmer against farmer, and neighbor against neighbor.

NAT’L FAMILY FARM COALITION V. USEPA51
VII. Post-Argument Request by Petitioners
On May 13, 2020, in the supplemental brief we had
ordered pertaining to the scope of their challenge, petitioners
requested (though without making a formal motion) that we
issue a summary decision, to be followed by an opinion. The
EPA moved for permission to file a supplemental brief
opposing petitioners’ request, as well as for judicial notice of
an extra-record document. In light of our issuance of the
opinion today, we deny the EPA’s motions.
VIII. Remedy
The EPA and Monsanto urge us, if we conclude that
substantial evidence does not support the 2018 conditional
registrations, to remand without vacatur, leaving the
conditional registrations in effect. We decline to do so.
We order remand without vacatur “only in limited
circumstances.” Pollinator Stewardship Council, 806 F.3d
at 532 (internal quotation marks omitted). To determine
whether vacatur is appropriate, “we weigh the seriousness of
the agency’s errors against the disruptive consequences of an
interim change that may itself be changed.” Id. (internal
quotation marks omitted). We also consider the extent to
which either vacating or leaving the decision in place would
risk environmental harm. Id. We have also “looked at
whether the agency would likely be able to offer better
reasoning or whether by complying with procedural rules, it
could adopt the same rule on remand, or whether such
fundamental flaws in the agency’s decision make it unlikely
that the same rule would be adopted on remand.” Id.

NAT’L FAMILY FARM COALITION V. USEPA52
Applying these criteria, we vacate the registrations. The
EPA made multiple errors in granting the conditional
registrations. As described above, the EPA substantially
understated the risks it acknowledged, and it entirely failed to
acknowledge other risks. We conclude that the “fundamental
flaws” in the EPA’s analysis are so substantial that it is
exceedingly “unlikely that the same rule would be adopted on
remand.” Id.
We are aware of the practical effects of our decision.
Among other things, we are aware of the adverse impact on
growers who have already purchased DT soybean and cotton
seeds and dicamba products for this year’s growing season,
relying on the availability of the herbicides for post-emergent
use. As the EPA explained to us in its brief, arguing against
vacatur: “Growers already have invested in both Xtendimax
and accompanying resistant seeds for the 2020 growing
season. Vacatur could leave those growers with an unusable
pesticide technology system and force them to expend
additional money on alternative seeds and pesticides.” The
EPA had also cautioned in its 2018 decision to grant
conditional registrations, “It is important to note that using
registered dicamba products on dicamba-tolerant cotton or
dicamba-tolerant soybean crops that are not registered
specifically for post-emergence use on dicamba-tolerant
cotton or dicamba-tolerant soybean crops is inconsistent with
the pesticide’s labeling and a violation of the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA).” We
acknowledge the difficulties these growers may have in
finding effective and legal herbicides to protect their DT
crops if we grant vacatur. They have been placed in this
situation through no fault of their own. However, the absence

NAT’L FAMILY FARM COALITION V. USEPA53
of substantial evidence to support the EPA’s decision
compels us to vacate the registrations.
Petition for review GRANTED. Registrations
VACATED. The mandate shall issue forthwith.