Beyond Pesticides, the Center for Food Safety (CFS), and others are doing victory dances this week after back-to-back court wins.
By denying a writ of certiorari in Hardeman v. Monsanto, the US Supreme Court let an early $25 million award to a person with cancer overuse of Roundup (glyphosate) herbicides.
Beyond Pesticides is a 501(c)3 nonprofit organization headquartered in Washington, DC, called the unsuccessful petition to the Supreme Court the Bayer-owed Monsanto’s “Hail Mary attempt.
The failure to obtain the high court review came just days after the federal appellate court ruled that the US Environmental Protection Agency’s (EPA’s) registration of glyphosate is unlawful because the agency failed to comply with its review standards.
The US Court of Appeals for the Ninth Circuit sided with the Center for Food Safety (CFS) and its represented farmworker and conservation clients by overturning the EPA’s decision that the toxic pesticide glyphosate is safe for humans and imperiled wildlife. Glyphosate is the active ingredient in Monsanto-Bayer’s flagship Roundup weed killer, the most widely used pesticide in the world.
The 54-page opinion held the Trump administration’s 2020 interim registration of glyphosate to be unlawful because “EPA did not adequately consider whether glyphosate caused cancer and shirked its duties under the Endangered Species Act (ESA).” Represented by the Center for Food Safety, the petitioners in the lawsuit included the Rural Coalition, Farmworker Association of Florida, Organización en California de Lideres Campesinas, and Beyond Pesticides. A consolidated case is led by the Natural Resources Defense Council and includes Pesticide Action Network.
The Supreme Court’s denial of certiorari has widespread impacts.
“In rejecting Bayer’s effort to reverse jury verdicts for harming people with its cancer-causing weed killer glyphosate, the Supreme Court is preventing the company from running roughshod over the environment and public health, poisoning people and flaunting health and safety laws while EPA regulators shrug off the rule of law,” said Jay Feldman, executive director of Beyond Pesticides.
As argued by Bayer, the case centered on the legal theory of preemption, with the company proffering that the “failure to warn” lawsuits it was subject to were preempted by federal law.
In other words, Bayer argued the registration process that allowed the chemical to market it was under no obligation to convey the health dangers of its weed killer.
The Solicitor General sided with Roundup victims and in an amicus brief urged the Supreme Court not to take up the case.
In response, Bayer tried to get tough and employed proxy trade groups to try to pressure the Biden Administration and Department of Justice to rescind their opposition to certiorari, expressing “grave concern” about the Solicitor General’s opinion.
Without review by the high court, Bayer will need to reengage with the over 31,000 plaintiffs it decided to set aside right after it launched its Supreme Court petition. According to news reports, the Bayer “respectfully disagrees” with the Supreme Court decisions. It also indicates it will continue to pursue a litigation strategy in the federal courts to discourage additional plaintiff litigation.
“While this decision brings an end to the Hardeman case, there are likely to be future cases, including Roundup cases, that present the US Supreme Court with preemption questions like Hardeman and could also create a circuit split,” Bayer said in a statement.
The Bayer-Monsanto side had numerous supporters, including some elected officials, agricultural organizations, and other stakeholders.
CFS offered this background for the second case:
In an “interim registration review” decision for glyphosate issued in January 2020, EPA finalized its human health and ecological risk assessments and adopted “mitigation measures” as label changes.
Despite significant gaps in its review, the EPA concluded there is no cancer risk from glyphosate, including coming to “no conclusion” as to non-Hodgkin lymphoma, the most well-known cancer linked to glyphosate. EPA also failed to assess how much glyphosate gets into a user’s bloodstream after skin contact, a significant route of occupational exposure.
Critically, EPA failed to test any glyphosate product formulations, which contain ingredients beyond just the active ingredient (glyphosate) and can increase the harmful effects of pesticide exposure. Finally, because EPA continued to use glyphosate with minor, unsubstantiated label changes, it needed to consider the impacts on imperiled species and do more to protect them from glyphosate.
CFS allies initially filed the lawsuit in 2020, incorporating evidence showing how EPA ignored glyphosate’s health risks, including cancer risks, to farmworkers and exposed during spraying. Petitioners also challenged the EPA’s decision based on threats to the environment and imperiled species, such as the Monarch butterfly.
In response to CFS and allies’ lawsuit, in May 2021, EPA effectively admitted serious errors in its provisional registration and asked the court for permission to re-do the agency’s faulty ecological, cost-benefit, and Endangered Species Act assessments. However, the agency stated that Roundup should stay on the market in the interim—without any deadline for a new decision.
In July 2021, Bayer announced it would end the sales of its glyphosate-based herbicides (including Roundup) in the US residential lawn and garden market in 2023 to “manage litigation risk and not because of any safety concerns.”
In California, jury trials continue to be held. Last year, courts affirmed a judgment against Monsanto for cancer from Roundup in Hardeman v. Monsanto—one of the first in a series of high-profile consumer lawsuits filed against Monsanto-Bayer—and in the third appeal of such a claim in Pilliod v. Monsanto.
While the EPA has repeatedly declared that glyphosate does not cause cancer, the World Health Organization (WHO) in 2015 found glyphosate is probably carcinogenic in humans.
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