In 2017, special formulations of dicamba herbicides known as over-the-top products were marketed for post-emergent use on genetically engineered soybeans and cotton. The use of these products was accompanied by considerable herbicide drift and volatilization that harmed millions of acres of nearby crops. In 2018, the EPA added requirements to the products’ labels to preclude offsite injuries. However, for each growing season during 2018-2021, unacceptable offsite injuries were reported in the major soybean and cotton producing states. Because they received reported injuries, state agencies issuing new registrations for dicamba products in 2018 and 2020 knew offsite spray drift and volatilization would carry dicamba particles onto nearby properties. Despite their knowledge, states issuing permits to use dicamba products were granting applicators easements over nearby properties. These easements involved entries of dicamba particles that damaged vegetation.
The legality of state-granted easements taking rights from property owners was recently examined by the U.S. Supreme Court in Cedar Point Nursery v. Hassid. There, a California regulation granting an easement for temporary entries by union organizers on growers’ properties was found to effect a taking under the Fifth Amendment’s Takings Clause. The Court found that the state appropriated a right to invade and a property owners’ right to exclude others from their properties. By taking these rights, the state effected a per se physical taking of private property. Under the rationale of Cedar Point, approval of dicamba registrations by state governments can be viewed as appropriations of neighbors’ right to exclude. The registrations grant dicamba applicators easements that allow dicamba particles to enter non-target properties. These intrusions suggest that the registrations appropriate property interests. Depositions of dicamba particles onto offsite properties effect per se physical takings. States should compensate injured property owners for losses from dicamba spray applications.
Terence J. Centner,
Invasions of Dicamba Particles: Holding States Accountable for Taking Offsite Property Owners' Right to Exclude,
91 U. Cin. L. Rev.
Available at: https://scholarship.law.uc.edu/uclr/vol91/iss2/2