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Daily News Blog

22
Jun

Supreme Court Permits Large Jury Verdicts on Roundup, Appeals Court Finds EPA Registration Unlawful

(Beyond Pesticides, June 22, 2022) Bad news is piling up for Bayer (Monsanto) and its carcinogenic flagship weed killer, glyphosate (Roundup). Last week, the Court of Appeals for the Ninth Circuit handed down a ruling that held the U.S. Environmental Protection Agency’s (EPA) 2020 approval of its notorious weed killer glyphosate unlawful. Then, yesterday, the U.S. Supreme Court declined to consider (deny certiorari) Bayer’s “Hail Mary” petition attempt to save the company from being held accountable to those diagnosed with cancer after using Roundup (glyphosate) herbicides. In both cases, the courts are acting as a check on a company, while EPA regulators charged with stopping this behavior continue to rubber stamp the agrichemical industry’s dangerous decisions.

This is not the first time that the Supreme Court has upheld the rights of victims of the pesticide industry. In 2004, Bates v. Dow Agrosciences (U.S. Supreme Court, No. 03-388), the court found:
“The long history of tort litigation against manufacturers of poisonous substances adds force to the basic presump­tion against pre-emption. If Congress had intended to deprive injured parties of a long available form of compen­sation, it surely would have expressed that intent more clearly. See Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 251 (1984). Moreover, this history emphasizes the im­portance of providing an incentive to manufacturers to use the utmost care in the business of distributing inherently dangerous items.”

“In rejecting Bayer’s effort to reverse jury verdicts for harming people with its cancer causing weed killer glyphosate, the Supreme Court is preventing the company from running roughshod over the environment and public health, poisoning people and flaunting health and safety laws, while EPA regulators shrug off the rule of law,” said Jay Feldman, executive director of Beyond Pesticides.

Regarding the Ninth Circuit decision, Mr. Feldman said: “EPA’s failure to act on the science, as detailed in the litigation, has real-world adverse health consequences for farmworkers, the public, and ecosystems. Because of the Appeals Court lawsuit, the agency’s obstruction of the regulatory process will not be allowed to stand, and EPA should start shifting food production to available alternative non- and less-toxic practices and materials that meet its statutory duty.” Represented by Center for Food Safety, the petitioners in the lawsuit included the Rural Coalition, Farmworker Association of Florida, Organización en California de Lideres Campesinas, and Beyond Pesticides. A consolidated case is led by Natural Resources Defense Council and includes Pesticide Action Network.

In the Ninth Circuit decision, the court voided EPA’s “interim registration review” decision approving continued use of glyphosate, issued in early 2020. “EPA did not adequately consider whether glyphosate causes cancer and shirked its duties under the Endangered Species Act (ESA),” the court wrote in its opinion.

The court held that EPA unlawfully concluded that glyphosate does not pose a cancer risk. Despite overwhelming evidence and Bayer’s high profile lawsuits, EPA came to “no conclusion” on glyphosate’s connection to non-Hodgkin lymphoma (NHL). Notably, the agency did not assess how much glyphosate gets into a user’s bloodstream after skin contact with the herbicide, a major route of exposure for the chemical. Skin irritation was noted as one of the initial concerns for Dewayne Johnson, the school groundskeeper who won the first legal case against Bayer/Monsanto after contracting NHL.  

The court criticized EPA for its “disregard of tumor results;” its use of “bare assertions” that “fail[] to account coherently for the evidence;” making conclusions that do not “withstand[] scrutiny under the agency’s own framework,” and “fail[ing] to abide by” its cancer guidelines. In sum the court noted EPA’s “inconsistent reasoning” made its decision on cancer “arbitrary,” and struck it down.

“We welcome and applaud the court on this significant decision,” said Jeannie Economos, Pesticide Safety and Environmental Health Project Coordinator at the Farmworker Association of Florida, a plaintiff in the case.While it comes too late for many farmworkers and landscapers who suffer after glyphosate exposure, we are grateful for the court’s ruling, and hope that now EPA will act quickly to protect future workers from illness and disease resulting from this toxic pesticide.” Represented by Center for Food Safety, the petitioners in the lawsuit included the Rural Coalition, Farmworker Association of Florida, Organización en California de Lideres Campesinas, and Beyond Pesticides. A consolidated case is led by Natural Resources Defense Council and includes Pesticide Action Network.

The Ninth Circuit also held that EPA violated the Endangered Species Act in reapproving glyphosate. After this lawsuit was launched, EPA filed a motion confessing that the agency made errors in its review of endangered species, including specifically the ways in which glyphosate harms imperiled monarch butterfly habitat. While asking the court for a re-do to study the dangers monarchs are already being subject to, EPA nonetheless asserted that glyphosate should stay on the market.

As a result of the decision, EPA is required to redo and/or finish all remaining glyphosate determinations within four months, by October 2022. Specifically, EPA must redo its ecological toxicity assessment, cost analysis on the impacts of pesticide harms to farmers, and its endangered species analysis and mitigation.  

Advocates and court watchers reacting to the Ninth Circuit case had been concurrently waiting for the Supreme Court to issue a determination on whether it would take up Bayer’s ongoing civil court cases holding it liable to those diagnosed with cancer after using Roundup (glyphosate). That case centered on the legal theory of preemption, with Bayer arguing that the “failure to warn” lawsuits it was subject to were preempted by federal law. In other words, Bayer argued that because EPA’s registration process allowed the chemical to market, it was under no obligation to convey health dangers about its weed killer.

In response to the Supreme Court petition, the Biden administration’s Solicitor General sided with Roundup victims and in an amicus brief urged the Supreme Court not to take up the case. In reaction, Bayer tried to get tough, and employed proxy organizations to put pressure on the Biden Administration and Department of Justice to rescind the letter, expressing “grave concern” about the Solicitor General’s opinion.

As the Ninth Circuit case shows, EPA’s review of glyphosate was lackluster, incomplete and failed to adequately capture the dangers posed by the herbicide. Of Bayer’s “Five Point Plan” for addressing the catastrophe around glyphosate, a significant amount hinged on a favorable decision from the Supreme Court. Without review by the high court, Bayer will need to reengage with the over 31,000 plaintiffs it decided to ignore right after it launched its petition. According to news reports, the corporation “respectfully disagrees” with the Supreme Court decision. It also indicates it will continue to gum up federal courts with its frivolous requests.    

“While [the Supreme Court] decision brings an end to the Hardeman case, there are likely to be future cases, including Roundup cases, that present the U.S. Supreme Court with preemption questions like Hardeman and could also create a circuit split,” Bayer said in a statement posted by Progressive Farmer DTN about a $80 million jury verdict against the company in Edwin Hardeman v. Monsanto Co. “The company is strongly encouraged by the widespread support from public officials, agricultural organizations and other stakeholders following the U.S. government’s legal reversal in Hardeman.”

The “widespread support” Bayer enjoys is generally associated with its business alliances and efforts to wield corporate influence over elected officials and in regulatory affairs. While the courts continue to act as a last resort for the rule of law and science-based decision making, advocates are calling for the overhauling of government agencies that ensure that they are meeting their charge to protect people and the environment, not the profits of giant corporations like Bayer/Monsanto.

Without needed reforms, EPA redoing their work, as required by the Ninth Circuit ruling, is unlikely to result in an outcome that is clearly protective. Advocates insist that with clear evidence on the dangers posed by glyphosate-based herbicides like Roundup, there is no more time for games that placate industry at the expense of public health and environmental sustainability.

When challenged by the influence of concentrated money and power, Beyond Pesticides aims to bring scientific transparency, advocacy, sound policy, and meaningful legal actions to the table. But our success depends on your help in promoting these critical messages. Get active today by taking action to protect pollinators like the monarch butterfly, putting pressure on Congress to reform America’s pesticide law.

All unattributed positions and opinions in this piece are those of Beyond Pesticides.

Source: Center for Food Safety press release, Progressive Farmer DTN, PBS News Hour

 

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One Response to “Supreme Court Permits Large Jury Verdicts on Roundup, Appeals Court Finds EPA Registration Unlawful”

  1. 1
    Pamela McDonald Says:

    The EPA, along with other Cabinet positions, has failed to exhibit due diligence over their prescribed areas.

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