By: Shawn Harkins
As I’ve gotten older, I’ve tended to see less and less of my friends, typically catching up with many of them in the local obituary section of my old local rag, the Billings Gazette. It seems that if they aren’t passing away in tragic car wrecks[i] and murder-suicides[ii], they are befallen by some sort of horribly ongoing illness. Although a depressing way to pass the time, it seems that outside of perusing the sports section to follow football and Class C High School Basketball, the obituaries have become a constant a part of my reading.
A while back, I was troubled to learn that Moss, a beloved old friend of mine, passed away after a long battle with glioblastoma.[iii] Glioblastoma is an aggressive type of brain cancer[iv], and recently, it has been linked to pesticide use[v] in agriculture. Moss was a long-time farmer, a part of Montana’s large agriculture industry[vi], and he often spent many days bathing his fields in pesticides, most notably Roundup.[vii] A rather controversial[viii] weed killer, Roundup has been a fixture in the commercial agriculture industry for nearly forty years.[ix] There are documented dangers[x] associated with the use of the chemical, most notably due to its main active ingredient, glyphosate[xi], one of the most widely used herbicides.[xii] Glyphosate is also a carcinogen linked to a number ailments, including cancer, birth defects, and liver and kidney diseases.[xiii] Moss often explained that he never worried about the dangers of using the chemical, and given the poor quality of water in the state[xiv], he felt safer drinking Roundup than he did from his local well. To each his own, I suppose.
Given the potential harms associated with the widespread use of glyphosate, it has been the center of some high-dollar lawsuits, most notably an $87 million dollar verdict last year in California.[xv] Perhaps one of the biggest issues in these lawsuits centers around a “failure-to-warn” claim.[xvi] Specifically, the issue is whether the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) preempts a state law failure-to-warn claim, particularly when the warning label cannot be added to a product without the Environmental Protection Agency's approval and when the EPA has concluded that a warning is not appropriate.[xvii] The 9th Circuit Court of Appeals, in a 3-1 decision, concluded that the state law was not pre-empted[xviii] due to the fact that Monsanto could comply with both California law and FIFRA.[xix] This decision was appealed by the Bayer Company, which purchased Monsanto (the creator of Roundup) for $66 billion[xx], and was denied certiorari by the United States Supreme Court in mid-2022.[xxi]
This should have been the end of the line; however, Bayer was nothing but relentless. Bayer sought a circuit split by trying to get the 11th Circuit Court of Appeals to apply the Costanza Rule[xxii] and find that there was pre-emption.[xxiii] Unfortunately for Bayer, and fortunately for those that use the product, the 11th Circuit ruled that the state failure-to-warn claims were not pre-empted by FIFRA[xxiv] on not one[xxv], but two[xxvi] occasions. Future actions will probably come up, but for now, it seems that the pre-emption issue is settled.
So where does this leave us? While it seems that there is a consensus that state law is able to regulate glyphosate, the EPA seems to be more slow-moving. The agency has withdrawn an interim registration review[xxvii], which is “a periodic reevaluation of pesticide registrations to ensure that existing pesticide products continue to perform their intended function without unreasonable adverse effects on human health or the environment.”[xxviii] The EPA indicated that the review would be released by October 1, 2022,[xxix] however, the agency has now kicked the proverbial can down the road, indicating that such a review will not be completed until 2026.[xxx] Because there is uncertainty surrounding the status of glyphosate as a harmful pesticide, this may potentially cause more legal wrangling between Bayer and potential plaintiffs.
It is understandable that such a high-stakes decision may take more time, however, it seems that three more years is an incredibly long amount of time. In the meantime, it seems that many will continue to deal with the uncertainties associated with the Roundup chemical. More farmers and ranchers like Moss will continue to experience the harmful effects from glyphosate in the name of progress, efficiency, and the Almighty Dollar. While the courts have concluded that FIFRA does not pre-empt state law claims, given the amount of lawsuits[xxxi] and dollars at stake[xxxii], as well as the continued widespread use of the chemical[xxxiii], the issue will likely arise again. Here’s hoping that 2026 will bring some much-needed clarity, as far down the road as that may be.
[i] Three people dead in Judith Basin County crash, KRTV (Oct. 24, 2022, 1:09 PM), https://www.krtv.com/news/accident-crash/3-people-dead-in-judith-basin-county-crash [https://perma.cc/6ZXN-YM8S].
[ii] Investigation ongoing following alleged homicide-suicide in Geyser, MONTANA RIGHT NOW (Oct. 26, 2021), https://www.montanarightnow.com/great-falls/investigation-ongoing-following-alleged-homicide-suicide-in-geyser/article_af6cd158-368b-11ec-bc69-db6c89286596.html [https://perma.cc/7ULE-98C3].
[iii] Glioblastoma, MAYO CLINIC (Apr. 4, 2020), https://www.mayoclinic.org/diseases-conditions/glioblastoma/cdc-20350148 [https://perma.cc/EFG5-M53J].
[iv] Id.
[v] N.M. Gatto et al., Farming, Pesticides, and Brain Cancer: A 20-Year Updated Systematic Literature Review and Meta-Analysis, CANCERS 2021, 13, 4477 (Sept. 5, 2021), https://doi.org/10.3390/cancers13174477 [https://perma.cc/UZ3T-P62V].
[vi] Economy of Montana, BRITANNICA ENCYCLOPEDIA (2022), https://www.britannica.com/place/Montana-state/Economy [https://perma.cc/Q8PN-5Y92].
[vii] Roundup, ROUNDUP (2022), https://www.roundup.com/en-us [https://perma.cc/BB4D-87DX].
[viii] Esther Mobley, How Roundup, the weed killer linked to cancer, became one of California wine’s biggest controversies, S.F. CHRON. (Sept. 14, 2022, 10:38 AM), https://www.sfchronicle.com/food/wine/article/California-vineyards-Roundup-weeds-17436285.php [https://perma.cc/7ZWD-FBXL].
[ix] Patricia Cohen, Roundup Weedkiller Is Blamed for Cancers, but Farmers Say It’s Not Going Away, N.Y. TIMES (Sept. 20, 2019), https://www.nytimes.com/2019/09/20/business/bayer-roundup.html [https://perma.cc/634V-HHK4].
[x] Id.
[xi] Kara Mayer Robinson, Herbicides and Your Health, WEBMD (Apr. 26, 2021), https://www.webmd.com/cancer/herbicide-glyphosate-cancer [https://perma.cc/F3A6-9C3W].
[xii] Id.
[xiii] Id.
[xiv] Daniella Pavon, Nasty Pollutants In Montana Drinking Water Put Your Health At Risk, PATCH (July 26, 2017, 11:17 AM), https://patch.com/montana/across-mt/nasty-pollutants-montana-drinking-water-put-your-health-risk [https://perma.cc/FPG7-5BJU].
[xv] Dietrich Knauth, Bayer presses for U.S. Supreme Court review of a second Roundup cancer case, REUTERS (Mar. 21, 2022, 6:03 PM), https://www.reuters.com/legal/government/bayer-presses-us-supreme-court-review-second-roundup-cancer-case-2022-03-21/ [https://perma.cc/C95Q-HKVX].
[xvi] Hardeman v. Monsanto, 997 F.3d. 941 (9th Cir. 2021).
[xvii] Id. at 952.
[xviii] Id. at 955-58.
[xix] Id. at 958.
[xx] Camila Domonoske, Monsanto No More: Agri-Chemical Giant's Name Dropped In Bayer Acquisition, NPR (June 4, 2018, 11:17 AM), https://www.npr.org/sections/thetwo-way/2018/06/04/616772911/monsanto-no-more-agri-chemical-giants-name-dropped-in-bayer-acquisition [https://perma.cc/QF3L-ZQF2].
[xxi] Monsanto Company v. Hardeman, SCOTUS BLOG (June 21, 2022), https://www.scotusblog.com/case-files/cases/monsanto-company-v-hardeman/ [https://perma.cc/UE9Z-5RYP].
[xxii] Adam Mendler, The Costanza Rule: When to Ignore Your Instincts and Do the Opposite, FORBES (Mar. 12, 2018, 8:00 AM), https://www.forbes.com/sites/forbesbusinessdevelopmentcouncil/2018/03/12/the-costanza-rule-when-to-ignore-your-instincts-and-do-the-opposite/?sh=466541f84638 [https://perma.cc/R45H-USYN].
[xxiii] Carson v. Monsanto, 39 F.4th 1334, 1337 (11th Cir. 2022).
[xxiv] Id. at 1340.
[xxv] Id.
[xxvi] See Carson v. Monsanto, 51 F.4th 1358, 1363 (11th Cir. 2022).
[xxvii] EPA Withdraws Glyphosate Interim Decision, EPA (Sept. 23, 2022), https://www.epa.gov/pesticides/epa-withdraws-glyphosate-interim-decision [https://perma.cc/RS6Y-SRUN].
[xxviii] Id.
[xxix] Id.
[xxx] Withdrawal of the Glyphosate Interim Registration Review Decision, EPA (Sept. 23, 2022), https://www.regulations.gov/document/EPA-HQ-OPP-2009-0361-14447 [https://perma.cc/KWF4-K7XG].
[xxxi] Mari Gaines, Roundup Lawsuit Update November 2022, FORBES (Aug. 18, 2022, 1:26 PM), https://www.forbes.com/advisor/legal/product-liability/roundup-lawsuit-update/ [https://perma.cc/8RQU-HPUV].
[xxxii] Id.
[xxxiii] Charles M. Benbrook, Trends in glyphosate herbicide use in the United States and globally, ENVIRONMENTAL SCIENCES EUROPE, 28 (2016), https://enveurope.springeropen.com/articles/10.1186/s12302-016-0070-0 [https://perma.cc/6LVM-6WRP].