Bush Administration Submits Brief to Supreme Court in FIFRA Preemption Case


(Beyond Pesticides, December 10, 2004)

The Supreme Court has agreed to review Bates v. Dow AgroSciences, LLC, a case involving the ability of victims to sue manufacturers for damages caused by pesticides registered by the Environmental Protection Agency (EPA). The case involves Texas peanut farmers, who allege that the Dow herbicide Strongarm (diclosulam) ruined their crops, but were prevented from suing after Dow successfully argued that registration of pesticides under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) insulates it from citizen suits.

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 is designed to protect pesticide manufacturers when their products cause harm. This position is contradictory to the administration’s public support of state’s rights.

“The Supreme Court has an historic opportunity to level the playing field and remind the administration, Congress and the lower courts that federalism is important,” said Jason Rylander of the non-profit organization BushGreenWatch. “By rejecting preemption except where specifically mandated by Congress, the Court can protect the ability of states to regulate products and provide remedies to their citizens.”

Essentially, if the Supreme Court rules in favor of Bates, it will ensure that injured parties have the right to compensation for damages caused by pesticide products that are registered by EPA. This additional measure of protection for citizens and states will also reinforce the guidelines that EPA is meant to follow in the registration process, including the product’s ability to “perform its intended function without unreasonable adverse effects on the environment.”. Oral arguments are to be heard this fall or winter, and a judgment is expected in July 2005.

Federalism, as outlined in the Supremacy Clause of the Constitution, holds that so long as no state’s laws are in direct conflict with Congressionally legislated mandates, they are legal and are therefore, not categorically preempted by federal laws. To that end, the Supreme Court does not necessarily have to rule in favor of preemption, although that has been its tendency in past rulings.

Beyond Pesticides believes that the environmental community needs to take a stand on this issue. The Supreme Court must uphold the states’ rights to regulate chemicals within their own jurisdiction, particularly when the flaws within the federal registration process are considered. By preempting the right to sue, pesticide manufacturers have no to pull a product if it later determined to cause harm. In so much as EPA is dependent upon data provided by industry and is not required to review efficacy data of products suggested for registration, Beyond Pesticides feels that citizens’ right to compensation must be protected. Beyond Pesticides, along with Physicians for Social Responsibility and the Sierra Club, filed an amicus brief with the court in September.

TAKE ACTION: Write a letter to the editor of your local paper to share your thoughts on this important issue. Consider including the following points

    • The EPA registration process does not require a review of efficacy data, so it is not implausible that ineffective and/or phytotoxic pesticides could enter the market and cause damage to humans and the environment despite their federal licensing.
    • The EPA registration process uses data gathered solely by industry itself and the due to the negative incentives of the risk assessment process used by industry scientists and EPA regulators, science that demonstrates human and/or environmental risk is less likely to be truly uncovered.
    • Federal statutes, unless specifically mandated to do so, were not designed to usurp all of the regulatory power of the states.


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