The Court’s decision gives the EPA unchallenged primacy over the state trial bar in deciding what should go on pesticide labels.
To read the headlines and social media hyperbole, you might think that yesterday’s 7–2 decision in Monsanto Co. v. Durnell was in favor of Monsanto giving people cancer. In fact, it involved a fairly straightforward application of federal preemption principles, albeit in a way that produced an unusual lineup. Justice Brett Kavanaugh’s opinion attracted the votes of Justices Elena Kagan and Sonia Sotomayor, while Justice Neil Gorsuch joined the dissent by Justice Ketanji Brown Jackson. Justice Clarence Thomas, who typically hates federal preemption, joined the majority but wrote separately (as is his wont) to argue that the federal statute in question was unconstitutional. While the direct result of the case is to insulate a chemical company from lawsuits, the winner from a separation-of-powers and federalism perspective is the Environmental Protection Agency. The Court’s decision gives the EPA unchallenged primacy over the state trial bar in deciding what should go on pesticide labels.
To recap: defendants in certain types of civil litigation often argue that state-law tort suits are preempted by federal regulation. We made this argument a lot in my years defending Wall Street and shareholder class actions, given the extensive federal regulatory footprint in those areas. It is also often made in product liability cases. Broadly speaking, there are three types of preemption: Field preemption, which is recognized in only a very few narrow areas of federal law, is where some subject is so extensively regulated under federal law that state law is just automatically excluded. (There’s one weird area of “reverse field preemption”: the McCarran-Ferguson Act presumptively ousts the feds from interfering in state regulation of insurance, with some exceptions such as health insurance). Express preemption is when Congress has said in so many words that state-law rules are preempted by federal law. Conflict preemption is when Congress hasn’t spoken on the question of preemption, but state law would interfere too much with the operation of federal law, so it is preempted. It’s the conflict-preemption area that Thomas has most severely criticized, given that courts are acting without express guidance from Congress.
Monsanto v. Durnell was an express-preemption case. The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which gives the EPA power to regulate pesticides and their labels, has a fairly strong express-preemption clause that was added in 1988: a “State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under [FIFRA].” Once again, that sounds pretty clear. States are allowed, as Kavanaugh noted, to outright ban pesticides even if they are EPA-approved; but a manufacturer is absolutely prohibited from using a label that isn’t preapproved by the EPA, or from changing that label without further approval from the EPA. The explicit purpose of this provision is to ensure “uniformity,” which of course is the opposite of federalism.
In a strict products-liability lawsuit, this might not matter much: if a product causes harm, the manufacturer pays even if it is not at fault. The same is true in a negligence case, if the manufacturer is at fault for making a dangerous product (although there’s a distinct can of worms when the manufacturer’s defense is “but the EPA told us it was safe!”). But many state product-liability lawsuits are “failure to warn” claims. The theory of those cases is that people are allowed to take informed risks, but manufacturers are at fault if they don’t warn about the risks. There’s a certain amount of fiction involved: When was the last time you actually read all the warning labels on something you used in your garden or on your lawn or in your house? But the problem is that failure-to-warn claims come down to arguments about whether a risk was not disclosed on the product label. It’s typically not enough for the manufacturer to, say, put out a press release or a section of the website: the warning is supposed to greet everyone who buys the product. But that means suing companies for doing something the EPA won’t let them do. Similar issues arise in cases involving labeling of food, drugs, and medical devices subject to FDA regulation.
Roundup, the Monsanto pesticide at issue, faces many of the same controversies that often dog pesticides and other chemicals: people blame it for cancer, but the scientific evidence of its actually causing cancer is hotly disputed. Some global organizations say that it’s a carcinogen; the EPA has repeatedly studied the issue and concluded that it’s not. As Kavanaugh observed, some of the Court’s precedents have allowed state-law claims to go forward when they involved the efficacy of pesticides, which the EPA doesn’t regulate, but “when it comes to safety claims, EPA’s registration determinations do reflect EPA’s considered judgment that a pesticide’s label is not false or misleading and contains all necessary warnings. So safety claims that would impose labeling requirements ‘in addition to’ or ‘different from’ those required under FIFRA are preempted.”
Thomas, being Thomas, argued that FIFRA “likely exceeds” the power of Congress under the commerce clause, delegates core legislative power to a federal agency in ways that benefit big corporations at the expense of the little guy, and allows agencies rather than Congress to preempt state law. But he joined the majority because “to the extent that federal agency action is treated with the force of law, regulated parties should likely not be compelled by state law to take contradictory actions.” As Thomas explained with regard to the commerce clause:
This power allows Congress to regulate selling, buying, and bartering across state lines. . . . It does not allow Congress to regulate agriculture or manufacturing, activities entirely separate from commerce. . . . [FIFRA] is a comprehensive regulatory statute that appears to regulate more than the Commerce Clause allows. . . . [It] purports to regulate how an individual who owns pesticide products such as Roundup can use those products, even if he bought them at a locally owned store down the street, and even if he seeks to use them in his own backyard. [Quotations and citations omitted.]
The bizarre thing about this case is that Gorsuch joined a Jackson dissent that characteristically tried to make up in length what it lacked in reasoning. Jackson’s argument is that FIFRA prevents “misbranding” of pesticides, and that EPA regulations would allow “minor modifications” to a label such as the exact warning that the EPA has repeatedly found not to be required. Kavanaugh responded that “EPA’s regulations specifically require EPA approval for precautionary ‘statements pertaining to the hazards of the product.’” Jackson’s theory is that this only applies to “acute hazards,” but as Kavanaugh rejoined, “the ordinary meaning of ‘hazards’ and ‘precautionary statements,’ . . . covers cancer warnings. Hazards to human health are hazards.” It seems hard to argue that the risk of cancer is not an acute one, but that is where Jackson’s argument leads.