Press Release from Beyond
Pesticides
April 28, 2005
http://www.beyondpesticides.org/news/daily.htm
Supreme Court Affirms Right
to Sue For Pesticide Harm
On April 27, 2005, the Supreme
Court ruled that citizens damaged by pesticides have the right
to sue companies of these toxic products, saying that federal
pesticide law does not offer adequate protection from “manufacturers
of poisonous substances.” Dow Chemical Company argued
that, because its products are registered by EPA, chemical manufacturers
should be shielded from litigation. The Bush Administration
joined the case in support of Dow.
In a landmark decision, the Supreme Court today upheld the
rights of citizens to sue for damages caused by pesticides,
after Dow Chemical Company and the Bush
Administration argued that the chemical industry should be shielded
from such litigation. “This decision affirms a
moral value that life is more precious than chemical company
profits,” said Jay Feldman, executive director of Beyond
Pesticides. The Bush Administration filed a brief in support
of Dow Chemical, arguing against the rights of citizens who
are poisoned or damaged from pesticide use.
The case, Bates et al v. Dow AgroSciences LLC, involves Texas
peanut farmers, who argued that the Dow
herbicide Strongarm (diclosulam) ruined their crops,
but were prevented from suing after Dow successfully argued
in a lower District court that registration of pesticides under
the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)
insulates it from citizen suits, or preempts litigation. The
Bush administration weighed in the case on the side of Dow,
officially reversing the position of the Clinton administration
(see Etcheverry v. Tri-Ag Service, Bayer Corp, et al.). The
Justice Department brief filed before the high court in late
November, 2004 was designed to protect pesticide manufacturers
when their products cause harm. Advocates cite that this position
is contradictory to the administration’s public support
of states’ rights.
The court decision reads, “The long history of tort litigation
against manufacturers of poisonous substances adds force to
the presumption against pre-emption, for Congress surely would
have expressed its intention more clearly if it had meant to
deprive injured parties of a long available form of compensation.”
The decision continues, “Moreover, this history emphasizes
the importance of providing an incentive to manufacturers to
use the utmost care in distributing inherently dangerous items.
Private remedies that enforce federal misbranding requirement
would seem to aid, rather than hinder, the function of FIFRA
[the Federal Insecticide, Fungicide and Rodenticide Act].
The Court criticized Dow and the Bush
Administration’s attempts to undermine public protection,
stating, “Dow and the United States exaggerate the disruptive
effects of using common-law suits to enforce the prohibition
on misbranding. FIFRA has prohibited inaccurate representations
and inadequate warnings since its enactment in 1947, while tort
suits alleging failure-to-warn claims were common well before
that date and continued beyond the 1972 amendments. We have
been pointed to no evidence that such tort suits led to a “crazy-quilt”
of FIFRA standards or otherwise created any real hardship for
manufacturers or for EPA.”
According to Beyond Pesticides, the court decision is extremely
important because:
(i) “Pesticides are registered by the Environmental
Protection Agency under a risk assessment review process that
implicitly does not consider all aspects of potential harm,”
(ii) “The potential for court review of cases in which
people are harmed creates a strong incentive for the development
of safer products,” and
(iii) “The same companies or their trade associations,
including Dow Chemical Company, that have successfully lobbied
for weak national laws and standards do not want people who
are harmed as a result to seek redress.”
Beyond Pesticides joined an amicus brief
in the case with Earthjustice, Defenders of Wildlife, Farmworker
Justice Fund, Natural Resources Defense Council, Physicians
for Social Responsibility, Public Citizen, Sierra Club, and
Trial Lawyers for Public Justice.