The US supreme court has found in favor of the former Monsanto company in a ruling that is expected to block thousands of lawsuits filed by people alleging the key ingredient in the weed killer Roundup causes cancer.
The decision was made in a 7-2 vote, with Justice Brett Kavanaugh offering the majority opinion and Justice Ketanji Brown Jackson writing the dissenting opinion, joined by Justice Neil Gorsuch.
The case, Monsanto v Durnell, specifically dealt with the question of whether a federal law that gives the Environmental Protection Agency (EPA) regulatory authority over pesticides preempts state claims that a company failed to warn users of certain product risks when the EPA itself has not required such warnings.
“Fifra expressly preempts Durnell’s state-law failure-to-warn claim,” reads the opinion written by Justice Kavanaugh, pointing to the Federal Insecticide, Fungicide and Rodenticide Act (Fifra).
In her dissenting opinion, Justice Jackson said: “Fifra expressly limits States’ authority to regulate pesticide labels, but it does not eliminate that authority,” adding: “Fifra’s preemption clause does not block state-law claims where the violation of state law is also a violation of Fifra.”
“In accepting Monsanto’s argument and holding that Durnell’s failure-to-warn claim is preempted, the Court misunderstands Fifra’s requirements, misinterprets the scope of Fifra’s preemption, and ultimately leaves Durnell without a remedy for the significant harms he has suffered,” she wrote.
The case at the heart of the decision deals with Monsanto’s glyphosate – a weed-killing chemical used in the popular Roundup brand and numerous other herbicide products sold by the former Monsanto company, which is now owned by Germany’s Bayer.
The chemical has been scientifically linked to cancer in multiple studies, and was classified a probable human carcinogen by an arm of the World Health Organization in 2015.
Bayer has spent the last decade fighting more than 100,000 lawsuits filed by people who developed non-Hodgkin lymphoma they blamed on exposure to the glyphosate weedkillers, and the company has paid out billions of dollars in jury awards and settlements. All of the cases include allegations that the company failed to warn that glyphosate could cause cancer.
Bayer maintains that its products don’t cause cancer, and also asserts that under the Fifra the EPA is the key authority for determining if its product necessitated a cancer warning. The EPA has not required such a warning and has taken the position that glyphosate is “unlikely” to be carcinogenic, so the company cannot be held liable for failing to warn, according to Bayer’s argument.
In the Thursday ruling, the supreme court upheld this argument. “In accordance with EPA’s view that glyphosate is not likely to cause cancer in humans, EPA has not required labels on glyphosate-based pesticides like Roundup to include a cancer warning,” the decision says.
Bayer praised the ruling while environmental and public health groups groups criticized it.
In a statement, Bayer described the ruling as “good for science, farmers, and industries that depend on regulatory clarity for innovation”.
The ruling “should help significantly contain the Roundup litigation after nearly a decade of legal battles”, Bayer wrote in its statement. “The ruling should result in the dismissal of current warning-based claims and bar future failure-to-warn claims.”
In a statement, Patti Goldman, senior attorney at the environmental legal non-profit Earthjustice, said: “The fact that EPA approved a pesticide label does not mean a product is safe, and it should not become a shield for companies that fail to warn about cancer risks, neurological harm, and other serious dangers.”
The court’s decision means the failure-to-warn claims included in several thousand lawsuits pending against Monsanto cannot go forward. Similarly, thousands of such claims pending against pesticide maker Syngenta cannot proceed. In the Syngenta cases, plaintiffs allege they developed Parkinson’s disease due to exposure to the company’s paraquat weed killer. Syngenta maintains that the evidence linking paraquat to Parkinson’s disease is “fragmentary” and “inconclusive”.
“Once again, the supreme court has sided with big business over people and the environment,” said Tarah Heinzen, legal director of the green advocacy group Food and Water Watch in a statement.
Nathan Donley, the environmental health science director at the environmental non-profit Center for Biological Diversity, said: “This Trump-blessed ruling preventing Americans’ from seeking justice for serious health problems linked to an EPA-approved pesticide means that now, more than ever, we need an EPA that protects people instead of foreign pesticide companies.
“The need to profoundly reform our industry-captured system of pesticide regulation could not be clearer,” he said.
The farmer-led advocacy group Farm Action said that though it is disappointed with the decision, “this fight is far from over”.
“No corporation should be allowed to use its market power or political influence to put itself above the law,” the organization’s president, Angela Huffman, said in a statement. “We will continue defending the fundamental right to seek justice.”
This story is co-published with the New Lede, a journalism project of the Environmental Working Group
