04
Jul
This Independence Day, Protect Democracy
(Beyond Pesticides, July 4, 2024) In reflecting on recent U.S. Supreme Court decisions that reduce federal government powers to restrict hazardous chemicals, including pesticides (see Clean Water Act decision and federal restrictions of toxic hazards under the reversal of Chevron decision), two remaining authorities in state and local governments and in the courts have become the next battleground to protect health and the environment. What is at stake are two major backstops to weak federal controls and chemical company disregard for safety: the critical importance of state and local governments’ exercise of authority to restrict toxic chemicals, and the ability of people to sue corporations for their failure to warn about their products’ hazards.Â
The attack on state and local authority in the Farm Bill
The Farm Bill in the U.S. House of Representatives:
Prohibits the rights of states and local governments to restrict pesticides and protect public health and the environment. The language says the Farm Bill will “prohibit any State, instrumentality or political subdivision thereof… from directly or indirectly imposing or continuing in effect any requirements for, or penalize or hold liable any entity for failing to comply with requirements with respect to, labeling or packaging that is in addition to or different from the labeling or packaging approved by the Administrator of the Environmental Protection Agency.†(SEC. 10204. UNIFORMITY OF PESTICIDE LABELING REQUIREMENTS).
In addition, the language includes: “A political subdivision of a State shall not impose, or continue in effect, any requirement relating to the sale, distribution, labeling, application, or use of any pesticide or device. . .†(SEC. 10205. AUTHORITY OF STATES). (See Daily News for further analysis.)Â
The attack on the right to sue companies that fail to warn on the hazards of their products
The Farm Bill in the U.S. House of Representatives:Â
Takes away the right to sue for failure to warn when harmed by pesticides. The language states that this bill will “prohibit. . .a court from directly or indirectly imposing or continuing in effect any requirements for, or penalize or hold liable any entity for failing to comply with requirements with respect to, labeling or packaging that is in addition to or different from the labeling or packaging approved by the Administrator of the Environmental Protection Agency.†(SEC. 10204. UNIFORMITY OF PESTICIDE LABELING REQUIREMENTS).
This language shields (gives immunity to) the producers and users of toxic pesticides from liability lawsuits associated with the harm that their products cause. The provision will block lawsuits like those successfully advanced against Bayer/Monsanto for adverse health effects, including cancer, associated with exposure to their products and companies’ failure to warn about these effects on product labels approved by the U.S. Environmental Agency (EPA).Â
If you have not already, TAKE ACTION to protect the backstop of state/local democratic authority to restrict toxic chemicals and the right to sue chemical companies for their failure to warn the public about their products’ hazards.Â
Here is what the Supreme Court did to limit the ability of the federal government to restrict pesticides and protect health and the environment.Â
The U.S. Supreme Court decision on June 28 reverses a 40-year-old decision in Chevron v. Natural Resources Defense Council, which created a deference to federal agencies in the rulemaking process. In the dissent to this 6-3 decision of the court, the dissenters focus on the role of executive branch agencies: “Congress has conferred on that expert, experienced, and politically accountable agency the authority to administer—to make rules about and otherwise implement—the statute giving rise to the ambiguity or gap.†Agencies, the dissenters say, are intended to have “subject-matter expertise.â€Â
The court majority finds that Chevron conflicts with the Administrative Practices Act (APA), saying, “Chevron defies the command of the APA that ‘the reviewing court’—not the agency whose action it reviews—is to ‘decide all relevant questions of law’ and ‘interpret . . . statutory provisions.’†The dissent continues: “In recent years, this Court has too often taken for itself decision-making authority Congress assigned to agencies. The Court has substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education.†The dissent sees the decision of the court’s majority as turning the judicial institution into the “country’s administrative czar,†and violating the court’s key principle of stare decisis, which establishes precedent as requiring an extraordinary set of circumstances to reverse—a tenet this Supreme Court has appeared comfortable in rejecting, including in Dobbs v. Jackson Women’s Health Organization (2022) and in reversing the court’s 1973 decision in Roe v. Wade.Â
The expectation going forward is that the chemical industry will challenge EPA as relying on a “statutory ambiguity,†or the discretionary authority given to it by Congress. Whether affected parties or public interest organizations concur with their decisions, agencies are supposed to have the expertise to implement laws and bring the facts to the rulemaking process. But, of course, there are facts and there are “alternative facts.†And, in the realm of pesticide regulation, many times it is the lack of facts, data gaps, uncertainties, and limited reviews that support regulations that are not adequately protective—even though much data in the scientific literature suggests there is more science than is being considered by the regulators (e.g., endocrine disruption, pollinators, disproportionate harm and vulnerable population groups, comprehensive ecosystem effects, etc.). The fact is that there has been a swing from the Reagan to Biden Administrations, with conservatives and chemical company interests embracing the Chevron decision and then rejecting Chevron, as agencies took stronger positions on climate and environmental justice, along with others (even though many environmental and public health groups see them as inadequate to meet current existential threats).Â
This Independence Day, make your voice heard with your elected representatives by (1) urging them to protect principles of democratic decision making that protect health and the environment, and (2) engage with local decisions that restrict pesticides in your community. Join Beyond Pesticides’ Parks for a Sustainable Future program through which we will assist you and your community in the transition to organic land management. Â
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
