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Monday’s Supreme Court hearing on the federal law governing pesticide regulation left observers largely uncertain what the court would rule in the former Monsanto Co. vs. herbicide glyphosate case, with many seeing the final ruling as too close to a decision.
At the hearing, the judges asked focused questions, primarily to lawyers representing Monsanto and representatives from the Department of Justice, which is siding with Monsanto in the case.
The justices pressed lawyers on a number of fronts, including asking how new science showing harms associated with pesticides should be handled after the pesticides have already been approved by federal regulators and placed on the market. The judges also referred to previous rulings that may conflict with the company’s claims.
Some who thought the scope and type of questions cast a strong picture in favor of Monsanto and its German owner Bayer reversed their predictions after the hearing.
Tom Clapps, managing director of regulatory analysis at advisory firm Gordon Haskett, sent a memo to Bayer investors following the hearing, lowering the company’s “probability of success” from 70% to 55% and calling the hearing “closer than expected.”
“In our view, Bayer is likely to be somewhat less confident in its position after today’s oral arguments than when it entered the court,” Claps told investors in an advisory note. He pointed out that the judges “pushed back” on the company’s position and arguments more forcefully than on the other side.
Consumer litigation at issue
Over the past decade, Bayer has fought more than 100,000 lawsuits by people who developed non-Hodgkin lymphoma due to exposure to Monsanto’s glyphosate-based herbicides, including Roundup brand. The lawsuit comes after the International Agency for Research on Cancer classified glyphosate as probably carcinogenic to humans in 2015.
Since then, the company has paid out billions of dollars in jury restitution and settlements to plaintiffs who say it should have warned jurors and other Roundup users about the cancer risks. An estimated 60,000 cases remain pending.
In Monsanto v. Darnell, filed this week in the Supreme Court, the company asked the court to rule that state juries cannot hold the company liable for failing to warn of cancer risks under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) if the Environmental Protection Agency (EPA) has not acknowledged the existence of cancer risks or required such warnings. EPA’s position is that glyphosate is “unlikely” to cause cancer.
If the high court agrees that FIFRA preempts state action if it fails to warn, it will make it harder for consumers to bring similar lawsuits not only against Monsanto but also against other pesticide manufacturers.
“Crystal Clear”
Attorney Paul Clement, who presented the company’s arguments in court, told the judge that failure to warn claims are “double preempted” under FIFRA and that the law is “clear that registrants cannot change safety warnings on pesticide labels” without EPA approval.
Analysts noted that Justices Sonia Sotomayor and Ketanji Brown Jackson are highly skeptical of Monsanto’s claims, while Justices Neil Gorsuch and Chief Justice John Roberts also appear reluctant to agree with Monsanto.
In one exchange, Chief Justice John Roberts pressed Chief Deputy Solicitor General Sarah Harris, who argued on behalf of the federal government in favor of Monsanto, about what to do if evidence of risk arises and the EPA becomes bogged down in a “long review process.”
“If it turns out they were right, it might have been nice for the federal government to have had an opportunity to do something to bring this danger to people’s attention while they were going through that process,” he told Harris.
Judge Gorsuch questioned why states could legally ban EPA-approved pesticides but not require warnings.
By contrast, Justice Brett Kavanaugh appeared to support the company’s argument, asking about the need for “uniformity” in labeling, but other justices were less clear-cut.
Many thought Darnell’s attorney, Ashley Keller, did a good job at the hearing, opening with the declaration:
“After two briefings and many platform hours, Monsanto has yet to point to a single line in the FIFRA document that states that the factual findings at the time of registration create a labeling requirement, because the document rejects that proposition in clear terms. There is nothing in, under, or next to FIFRA that would allow EPA to make a registration decision preemptively binding labeling requirements,” Keller told the judge.
There are no safe bets
Ricky LeBlanc, lead attorney at the Sokolob law firm, which represents Roundup plaintiffs against Monsanto, said it’s a “dangerous game” to guess what the Supreme Court will decide.
“Given the arguments so far and the questions the justices have asked, the only safe bet is that this could be a close decision,” LeBlanc said.
Erin Wood, a partner at Nachawati Law Group, which represents more than 5,000 Roundup plaintiffs, said the justices do not seem to have made up their minds yet, judging by the content of their questioning.
“I didn’t think there was an overwhelming advantage for either side in the whole interrogation,” she said. “I think the final verdict could go either way, and the judge may still have some work to do before making a decision.”
Prediction markets, including the popular Calsi platform, favored Monsanto’s victory, but the odds in the company’s favor have declined since the hearing.
Some observers expected Darnell to win. Charles Benbrook, a longtime agricultural industry analyst and consultant to Roundup plaintiffs, said after attending the hearing that he expected the ruling to be split, but that Justices Roberts, Gorsuch, Jackson, Sotomayor and Elena Kagan would rule against Monsanto and rule 5-4 or 6-3 in Darnell’s favor.
Similarly, attorney David Uhl, who attended the oral arguments in person, said he expected a verdict against Monsanto, although the court was clearly divided.
“A majority of the justices would agree that through FIFRA, Congress intended pesticide manufacturers like Monsanto to be held accountable for the adequacy of their labels at all times,” said Uhl, who represents hundreds of Roundup plaintiffs.
Nora Freeman Engstrom, a Stanford University law professor and co-director of the Deborah L. Lord Law Center, said the lawsuit could continue regardless of what the court decides.
“Even if Bayer were to convince a majority of the court that[FIFRA]preempts the plaintiffs’ non-warning claims…the plaintiffs have several other claims that could be asserted, including claims for negligence, design defects, negligent misrepresentation, and fraud,” Engstrom said. “Thus, while Bayer’s victory may narrow the scope of the case, it does not end it.”
A verdict is expected to be handed down by late June.
Read the full text of the April 27 hearing.
Featured Image: Fred Schilling, U.S. Supreme Court Collection
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Carrie Gillum is editor-in-chief of The New Lede and a veteran investigative journalist with more than 30 years of experience covering U.S. news, including 17 years (1998-2015) as a senior correspondent for Reuters International. She is the author of Whitewashing: A Story of Herbicides, Cancer, and the Corruption of Science, which exposed the agricultural corruption of the Monsanto corporation. The book won the coveted Rachel Carson Book Award from the Society of Environmental Journalists in 2018. Her second book, the narrative law thriller The Monsanto Documents, was released on March 2, 2021.
She also contributed chapters to a textbook on environmental journalism and a book on pesticide use in Africa.
Mr. Gillum testified about his research as an invited expert before the European Parliament in 2017 and was a featured speaker at the World Democracy Forum in Strasbourg, France in 2019. He has also been a keynote speaker and panel speaker at events and universities in North America, Australia, the Netherlands, Brussels, and France.
Gillam is a regular contributor to the Guardian. Her work has also appeared in The New York Times, Huffington Post, Time, and other outlets.
In 2022, Gillum helped launch The New Lede as a journalism initiative of the Environmental Working Group.
Gillum is a member of the Association of Environmental Journalists.
