Dicamba was developed in 1958 by the German-based chemical company BASF, and first used on corn crops in the mid-1960's. Dicamba, unfortunately, is not only deadly to a whole host of weeds, including pigweed, but also to many crops and flowering trees and shrubs. Dicamba has a chemical tendency to convert from a liquid to a gas, under the right weather conditions (called temperature inversion), and vaporize off plants it was sprayed upon and rise back up into the atmosphere, only to drift and then drop back down, miles away from the original site, onto vegetation, with highly lethal results.
As a result of this potential contamination of neighbors crops, farmers didn't spray with dicamba. Also, it was also illegal to use dicamba in Arkansas. But, the penalty was a maximum $1000 fine by the State Plant Board which was nothing to a violator who had hundreds of thousands of dollars to gain in profits.
Then, in 2015, Monsanto stepped in and released its Xtend brand of cottonseed. A year later, it released its Xtend brand of soybean. These GMO modified seeds were Dicamba resistant. Both BASF and Monsanto also developed what they advertised as drift-resistant Dicamba. The message from Monsanto to farmers became clear: double down with Dicamba and sign up for both the dicamba-resistant seed and the “improved, low-drift” spray, and beat your neighbors to the punch. Produce more, sell more. This message sold with some farmers and they bought in, leaving their neighboring farmers, and communities, exposed and defenseless.
The results were stunning. Farmers who didn't wait for approval by the Arkansas State Plant Board, used the banned dicamba spray, and bought the GMO seed, to the great harm of their neighboring farmers. Mike Wallace, a Monette, Arkansas farmer, who was outspoken in his opposition to dicamba damage, was shot to death on October 27, 2016, at a meeting with the farmhand of a dicamba spraying farmer. The trial of his shooter is set for September 11th of this year. Wallace’s surviving widow Karen, estimates the Wallaces experienced an estimated $150,000 of crop damage from dicamba the first year of spraying.
But, it wasn't until after the damage had been done that the Arkansas State Plant Board took action, banning dicamba use and raising the fine to $25,000 on July 11. It was too little, too late.
The question raised is what role does government regulation, criminal law, and the civil justice system play in deterring this kind of behavior? Where farmer will go against farmer and intentionally violate the law and the regulations, in order to produce a profit, or gain a competitive advantage, or to survive economically. How do these oversight systems work? How do they work together? How much regulation is too much or too little? Do we need greater criminal penalties? How about caps on the damages that farmers can obtain in court? My answer would be that money talks; and you know what walks. The only proven way to deter illegal and harmful, greedy behavior, is to employ the whole arsenal of weapons. The punishment has to fit the crime. The penalty has to hurt the violator. Regulations are in place because someone in the past cheated on the rules. Criminal law is for punishment. Yet, criminal punishment won't make these farmers whole. They may have lost their farms and their livelihoods.
The only way to deter illegal, harmful behavior, and restore those harmed is to hit the violators where it hurts, and that is in the pocketbook. Their illegally gained profits must be restored to those whom they harmed, and those who are harmed must be restored their losses. The constitutional right to a trial by a jury must remain inviolate. Violators have to be held accountable.
There are two tracks of lawsuits going forward right now. One track is on behalf of several non-dicamba using farmers and is against Monsanto and BASF for crop damage due to drifting dicamba spray. The other track is on behalf of farmers who bought dicamba-resistant seed and used dicamba spray and is against Monsanto, BASF, and DuPont for civil conspiracy, trespass, nuisance, negligence, products and strict liability, illegal monopoly, deceptive trade practices, fraud and misrepresentation. Below is a link to the latter class action lawsuit.
In the case of dicamba, there seems to be plenty of blame to go around, but Monsanto and BASF are at the root of it. We shall see how the trials turn out.