WASHINGTON, April 29 – LAWFUEL – The Law News Network — In a landmark…

WASHINGTON, April 29 – LAWFUEL – The Law News Network — 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, a
Washington, D.C.-based environmental group. 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 requirements 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.
See decision at: http://a257.g.akamaitech.net/7/257/2422/27apr20050800/www.supremecourtus.gov/opinions/04pdf/03-388.pdf

Web Site: http://www.beyondpesticides.org

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