Someone who first traverses the Midwest may understandably believe the fields of corn, soybeans, wheat, and cotton seem endless. These monotonous fields, however, fuel an agricultural industry that contributes trillions of dollars to the United States’ gross domestic product (GDP). What is more, these fields are a necessity to nourish families from Maine to California. In order to maintain millions of acres of crops across the Midwest, farmers must plant unique seeds, and then fend off corrosive weeds that harm and destroy their valuable cash crops. These weeds are both evasive and powerful; they can decimate entire fields at a time. In order to effectively combat these weeds, farmers often rely upon synthetic herbicides. It is the EPA’s responsibility, moreover, to analyze and approve herbicides that are more beneficial than costly to society. Herbicides, and the seeds they are meant to protect, are predominately manufactured by a select few agricultural conglomerates that dominate the agricultural industry. This market concentration drastically limits the amount of seeds and herbicides that farmers may choose from when preparing for planting season.
In addition to corn, soybeans and cotton are massive contributors to the agricultural industry as a whole. The most popular herbicide used by soybean and cotton farmers across the country is dicamba; it is highly effective against destructive weeds. Dicamba is solely produced by three of the largest agricultural entities in the world. Despite its effectiveness, dicamba comes with a significant cost: it has the tendency to drift to other, untargeted fields when used. If a nearby field is not planted with seeds that are resistant to dicamba, the field may be completely ravaged by the powerful herbicide.
In 2020, this drifting issue became so severe that the Ninth Circuit deemed the use of dicamba illegal; this occurred in the middle of growing season. Put differently, millions of farmers were left defenseless to powerful weeds during the most critical months in American agriculture. As an act of emergency, the EPA reinstated dicamba to avoid a disastrous growing season. The herbicide’s brief absence nevertheless sent shockwaves through all of agriculture.
Litigation surrounding dicamba illustrates the herbicide’s uncertain future. In the meantime, however, farmers are left with two choices. On one hand, a soybean or cotton farmer can purchase dicamba-resistant seeds and herbicides from large agriculture conglomerates. The risk involved in this decision is that dicamba could get taken off the market at an inopportune time; ravenous weeds could then decimate the farmer’s crops and income. On the other hand, a soybean or cotton farmer could purchase nondicamba products and avoid the risk of their herbicide being taken off the market. The risk in this instance, of course, is that a neighbor using dicamba could destroy all nondicamba-tolerant fields in the general area.
In sum, farmers cultivating millions of acres across the country are handcuffed. Prior to planting their crops, farmers must make substantial investments that severely lack certainty. This Note proposes an alteration to the procedures applied by the EPA when approving herbicides for public use. If herbicide producers are incentivized to manufacture herbicides that may not decimate the hard work of one’s neighbor, a realistic scenario exists where cotton and soybean farmers will not only invest with confidence, but also without fear.
a. J.D. Candidate, 2021, University of Illinois College of Law; B.S., University of Illinois, College of Agricultural, Consumer and Environmental Sciences. I am extremely grateful to the members and editors of the University of Illinois Law Review; as a whole, your ambition simply cannot go understated. I dedicate this Note my loved ones: my parents, Brooke and Andrew; my brothers, Sam and Eli; and my grandparents, Steve and Debbie. My greatest blessing is your unconditional support.
The full text of this Note is available to download as a PDF.