The Environmental Protection Agency had to decide how to contain a weedkiller that escapes soybean and cotton fields, damages neighboring crops, and has twice lost federal approval in court. Its answer was to ask Bayer, the company selling it, which restrictions Bayer preferred.
That description comes from the agency’s own paperwork. A May 2025 EPA presentation offered Bayer two approaches to dicamba volatility and three approaches to runoff. The final slide was titled “Registrant response needed” and asked, “Which mitigation option to go forward with?” Eight days later, Bayer replied that it “would like to proceed” with the less restrictive volatility option and the middle runoff option.
The EPA carried those choices into its proposed rule. The Center for Food Safety, one of the litigants, reports that the final decision kept Bayer’s preferred approaches to volatility and runoff, with a modification to the acreage limit. The agency did reject an additional tank mix exception Bayer had requested. That rejection shows the EPA retained the legal power to say no. The documents also show the agency asking Bayer to design its yes.
A chemical that refuses to stay put
Dicamba has existed since the 1960s, but its use exploded after Monsanto introduced soybeans and cotton engineered to withstand spraying over the top of the crop. Monsanto is now owned by Bayer. Dicamba can volatilize after application and move beyond the target field, injuring crops and wild plants that were never supposed to encounter it.
The EPA’s presentation to Bayer acknowledges the problem plainly. It says dicamba volatilization rises with temperature, that emissions can continue beyond 48 hours, and that the agency found “meaningful increase above 85°”. The more protective option would have prohibited applications above 85 degrees Fahrenheit. Bayer picked the alternative that allowed spraying up to 95 degrees if less acreage was treated.
The groups suing the EPA cite an Agriculture Department estimate that dicamba drift damaged up to 15 million acres of soybeans in 2018 alone. Beekeepers in several states have reported sharp drops in honey production after dicamba suppressed the flowering plants their bees need.
Federal courts have already rejected the EPA’s handling of this product twice. The Ninth Circuit vacated the 2018 registrations in June 2020 after finding that the agency had understated risks and ignored what the court called “enormous and unprecedented damage”. In February 2024, an Arizona federal court vacated the next registrations, calling the EPA’s failure to take public comment “very serious” and criticizing its “circular approach” to risk.
Between those rulings, the EPA’s inspector general found that the agency skipped required peer reviews during the 2018 decision. Senior officials made changes or omissions in scientific documents, and staff members felt “constrained or muted” when raising concerns.
Consultation has a limit
Pesticide registration necessarily puts the EPA in contact with the registrant. Bayer has technical information about its product, and a restriction that makes a herbicide unusable is effectively a ban. The agency told the Guardian that companies may submit ideas that “preserve their product’s utility” and insisted that “the registrant does not dictate terms.”
The final decision supports that narrow claim because the EPA rejected Bayer’s requested tank mix exception. Retaining veto power is a low bar. A regulator should collect a company’s data, test its claims against independent science, hear from the people absorbing the damage, and make the decision. The EPA presented a range from more protective to less protective and asked the company which option to advance. It then retained Bayer’s choices on the two main questions in the final approval.
Bayer will argue for a useful product because it profits from every acre sprayed. The EPA’s job is to recognize that interest and protect the farmers beyond those acres who carry the risk.
That financial interest is concrete. In 2020, Investigate Midwest reported that a federal jury awarded Missouri peach grower Bill Bader $265 million after finding Monsanto and BASF liable for damage to his orchard. A judge later reduced the punitive portion of that award, and Bayer announced a separate $400 million settlement with farmers harmed by dicamba. Bayer belongs in the process as an interested party, not as the regulator’s menu picker.
The people making the invitation
The Guardian reported that the top four positions in the EPA’s toxics office are held by former chemical industry figures. Nancy Beck, who leads that office, previously worked for the American Chemistry Council. Kyle Kunkler now oversees the pesticides program after spending five years directing government affairs for the American Soybean Association, according to E&E News.
Former lobbying jobs alone cannot prove that officials rigged this decision. They do make independence more important. An office led by industry veterans should be especially careful to show that regulated companies provide evidence rather than select outcomes. Lee Zeldin’s EPA produced the opposite record.
When the Guardian asked about that record, an EPA spokesperson replied: “This is not a compliance failure; it is the regulatory system working exactly as intended.”
The sentence is accurate. The system heard from Bayer before the public saw the proposed decision. It offered Bayer a menu, adopted the company’s main selections, and reapproved dicamba after two courts and the agency’s own watchdog had documented failures in earlier rounds. The farmer downwind never got a menu.