The United States could face foreign attacks, food shortages and agricultural “devastation” if the Supreme Court rules against Monsanto in a high-profile case over pesticide regulations scheduled for argument later this month, according to a series of legal briefs supporting Monsanto.
By contrast, opponents’ legal briefs warn that if the court sides with Monsanto, consumers will be stripped of their right to sue if they develop cancer or other serious illnesses caused by exposure to dangerous chemicals. They warn that companies will be able to hide the risks of their products with little accountability.
The lawsuit centers on glyphosate. Glyphosate is a widely used herbicide that has long been a favorite among farmers, but studies have also linked it scientifically to cancer.
The court’s task is to determine whether federal law inherently preempts states’ labeling requirements for products that may cause harm.
The issue has excited people across the country and spurred debate across political lines. Hundreds of organizations and individuals, including elected officials from dozens of states and former federal officials, filed lengthy legal briefs detailing arguments they hope will sway the court’s decision.
Many people are taking advantage of the Supreme Court’s “lottery” and vying for tickets to watch the April 27 hearing in person. Members of the Make America Healthy Again (Maha) movement are also planning a “People vs. Toxic” rally outside the courthouse, which they hope will draw thousands of protesters.
“This is an important case,” said Allen Rostron, associate dean of the University of Missouri-Kansas City School of Law. “I would characterize this as one important battle in a broader, longer war over these kinds of issues: how best to balance public health and safety interests with other concerns.”
Monsanto, owned by German conglomerate Bayer since 2018, believes a ruling in its favor could help end lawsuits brought by people who developed cancer from using the herbicide Roundup and other glyphosate products and who say Monsanto failed to warn them about the cancer risks.
An employee prepares Roundup products on a store shelf in San Rafael, California, on July 9, 2018. Photo: Josh Edelson/AFP/Getty Images
After losing multiple jury trials, the company paid billions of dollars to resolve the majority of its lawsuits and is proposing to spend an additional $7.25 billion toward a class action settlement aimed at resolving up to 60,000 pending lawsuits.
At the heart of Monsanto’s case in the Supreme Court is the company’s position that under the federal Insecticide, Fungicide, and Rodenticide Act (Fifra), the company cannot be held liable for failing to warn of cancer risks associated with its products if the Environmental Protection Agency (EPA) has denied that such risks exist.
“EPA has determined that glyphosate and Roundup do not cause cancer and that warnings to the contrary are not required or permitted under Fifra,” the company said in its court filing.
In taking up the case, the court said it would specifically consider whether Fifra preempts “label-based failure to warn claims” when the EPA does not require a warning.
More than 100 individuals and organizations filed briefs opposing Monsanto’s position, arguing that federal law clearly leaves room for individual state labeling requirements, including product risk warnings.
They point to lower court rulings and a 2005 Supreme Court ruling on the issue.
A new interpretation of Fifra preemption would effectively exempt manufacturers of dangerous products from liability, they say.
In a brief, the attorneys general of Texas, Florida and Ohio cited the 2005 case and urged the court not to rule in Monsanto’s favor, saying that “preemption by federal agency action poses a particular threat to state sovereignty.”
Many opponents also say in court filings that the EPA has a track record of failing to adequately regulate chemicals found to be harmful to human health, noting that the agency’s most recent review of glyphosate’s safety was reversed by a federal court after the court found the agency’s assessment was not scientifically sound.
Among those opposing Monsanto’s position are eight former EPA officials. U.S. Sen. Cory Booker. and a group of scientists warning of the health risks posed by glyphosate in a legal brief.
More than a dozen farmworker organizations also opposed Monsanto, arguing that there are “significant gaps” in the EPA’s requirements for scientific evaluation of pesticides.
By contrast, more than 100 other organizations and individuals have joined the company in its court filing, including elected officials from agricultural states and dozens of farm organizations.
Many self-proclaimed “glyphosate advocates” equate the losses from the labeling issue with forcing glyphosate off the market, arguing that without glyphosate, the nation’s food production is at risk.
“Removing glyphosate from the market would pose an immediate and catastrophic risk to America’s food supply,” several agricultural organizations warned in a legal brief.
Many argue that glyphosate has a proven track record of safety and cite extensive regulatory reviews.
Monsanto’s allies include the attorneys general of 15 states, as well as more than 30 elected officials from Missouri, Kansas, North Dakota, Iowa, Kentucky, and Arizona.
Missouri Sen. Jason Bean filed a brief with the court arguing that if the court does not cooperate in halting the lawsuit against Monsanto, the lawsuit could lead to “further dependence on a foreign adversary, namely China” and leave the United States “vulnerable to future attacks.”
U.S. Attorney General D. John Sauer also filed a court brief in Monsanto’s favor, citing “EPA’s considered judgment as to what warnings are actually necessary to protect the public health…” and the need for “uniformity” in pesticide labels across the United States.
Sauer’s position is supported by President Donald Trump, who in February issued an executive order mandating protections for glyphosate production, citing glyphosate as “the foundation of this country’s agricultural productivity and rural economy.”
Nora Freeman Engstrom, a professor at Stanford Law School, said political pressure should not influence the court’s decisions.
“The Trump administration has made clear what it wants the Supreme Court to rule, but the court is going to read FIFR, and … the court is going to do its own pre-emptive analysis,” she said.
“In some areas, we are entitled to special respect for the federal government’s views. This is not among those areas.”
This article is co-published with New Lede, a journalism project of the Environmental Working Group.
