The US Environmental Protection Agency incorporated Bayer's selected regulatory choices into a proposed federal rule for dicamba after presenting the company with options to address the herbicide's volatility and runoff. Records released in ongoing litigation show the agency solicited Bayer’s input on restrictions, and the company’s preferred measures were adopted in the resulting proposal.

Internal EPA documents show the agency asked Bayer to select regulatory options for the herbicide dicamba. An EPA presentation included a slide titled “Registrant response needed” asking "Which mitigation option to go forward with?"

In May 2025, the EPA presented Bayer with two mitigation choices to address dicamba’s high volatility. One volatility mitigation option would have prevented dicamba applications above 85 degrees Fahrenheit. A less restrictive volatility mitigation option would allow dicamba applications up to 95 degrees Fahrenheit if the treated acreage was reduced.

Eight days after the May 2025 meeting, a Bayer representative emailed the EPA stating the company would like to proceed with specific options. Bayer chose the less restrictive volatility mitigation option, allowing application at up to 95 degrees Fahrenheit if the dicamba-treated area was reduced. Bayer requested an option allowing full-field dicamba treatments at higher temperatures if dicamba was not tank mixed.

The EPA granted Bayer's request for the non-tank-mixed high-temperature treatment option. This change was not initially proposed by the agency but was secured through Bayer's request.

The EPA provided Bayer with three options for addressing dicamba runoff. Bayer selected the least protective regulatory option for one dicamba regulation and the middle of three protection levels for another. The EPA granted Bayer's preferred option for mitigating runoff.

An EPA manager wrote in an email that the next step was getting feedback from registrants on which mitigation option they would like to move forward with. Documents showed the regulatory plan was presented to Nancy Beck, who leads the EPA’s office of chemical safety. Beck is a former lobbyist for the American Chemistry Council.

Kyle Kunkler, a former pesticide industry lobbyist, serves as a deputy assistant administrator overseeing the pesticides program at the EPA. The top four toxics office positions at the EPA are held by former chemical industry leaders.

Bayer's selected regulatory options were included in rules proposed by the EPA a few months after the May 2025 meeting. An EPA spokesperson said the regulatory system is working as intended. "Make no mistake: this is not a compliance failure; it is the regulatory system working exactly as intended." The spokesperson added that companies are permitted to submit mitigation ideas that preserve product utility while the agency develops its own proposals.

"[Companies] are permitted to submit mitigation ideas that preserve their product’s utility, and EPA also will independently develop its own proposed mitigations." The spokesperson stated that the registrant does not dictate terms. "To be explicitly clear: the registrant does not dictate terms." "The agency notifies the [pesticide maker] and works with them to identify possible solutions to risks," EPA spokesperson said.

Critics compared the process to ordering from a menu. Nathan Donley, environmental health science director, said the agency allowed Bayer to choose its preferred measures. "The EPA is allowing Bayer to choose its preferred measures to limit dicamba’s damage as if it was ordering up a late-night dinner à la carte from Chili’s," Donley said.

He added that it becomes troublesome when the agency allows manufacturers to regulate themselves. "It becomes troublesome when the EPA allows them to regulate themselves by choosing the mitigations."

Kelly Ryerson, an advocate, criticized the agency's relationship with industry players. "It is now undeniable that the EPA remains fully captured by a crooked collection of pesticide company players who so enthusiastically ignore the substantial losses of farmers and the federal courts who mandated a halt to dicamba use," Ryerson said. She also commented on the lack of protection from carcinogens. "In return for this egregiousness, I would like the EPA to propose a menu of options to Maha for significantly decreasing our exposure to known carcinogens and endocrine disruptors," Ryerson said.

Timeline

Dicamba drift has damaged millions of acres of farmland, orchards, vegetable farms, home gardens, native plants, trees, and wildlife refuges across the United States since 2016.

Why It Matters

Dicamba is linked to liver cancer and Non-Hodgkin lymphoma. Experts have found dicamba drift damage to be the worst of any herbicide in the history of US agriculture. Courts have ordered dicamba off the market twice due to drift problems, yet the EPA has re-approved dicamba after court orders removed it from the market.

The documents reveal a process where the regulator sought industry input on the level of protection required for a chemical associated with agricultural damage and health risks. The adoption of the manufacturer's preferred options, including less restrictive temperature limits and runoff controls, occurred within a framework where former industry lobbyists hold key regulatory positions.