A review of registrations for over-the-top dicamba products and liability for state governments for appropriating neighbors' right to exclude

Abstract

Injuries inflicted by spray applications of dicamba herbicides on neighboring properties have raised questions about the validity of the dicamba registrations and the adequacy of protection accorded others. An evaluation of the documentation used by the Environmental Protection Agency in approving the 2020 dicamba registrations discloses a lack of evidence supporting issuance of the registrations. In the lawsuit challenging the 2020 registrations, the court may decide they need to be vacated. While over-the-top dicamba products for use on soybeans and cotton have been beneficial in controlling weeds, their volatility has caused major offsite injuries. Neighboring property owners have the right to exclude others from their properties, including the exclusion of spray drift and volatilization of pesticide particles. By approving dicamba registrations, states have enabled dicamba particles to invade offsite properties. The registrations obliterate neighbors' right to exclude others from their properties thereby constituting a taking of private property without just compensation for which state governments can incur liability.

Keywords

• Dicamba
• Spray drift
• Volatilization
• Invasion
• Takings clause
• Governmental liability