Dicamba records put EPA–registrant mitigation choices under scrutiny

On September 20, the Guardian reported that internal documents released in pending litigation allegedly show the EPA presented Bayer with alternative mitigation measures for dicamba and incorporated options the company selected into the regulatory process. The EPA said registrants may suggest mitigation measures but that the agency makes final decisions, and the litigation allegations have not been adjudicated. For pesticide manufacturers and regulated companies, the immediate lesson is that informal option-setting and technical exchanges may later be examined as evidence of agency independence and scientific rigor. Counsel should ensure the administrative record explains why the final mitigation package addresses identified risks, rather than relying on a sequence that could be characterized as registrant choice.