PANNA: Top Court Saves Right to Sue
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For many years, a person injured by a pesticide was able to file a liability claim against the manufacturer in state courts. But beginning in the 1990s, chemical industry lawyers argued that a clause in FIFRA, as revised by Congress in 1972, shielded manufactures by requiring that states "shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required" by the federal law. Four years ago the Bush administration joined the industry's position, claiming U.S. Environmental Protection Agency (EPA) registration of a pesticide protected the manufacturer from litigation, even if the product did not work as claimed. Last week, the high court rejected that view in a 7-2 decision and firmly came down on the side of the public.
The case, Bates vs. Dow AgroSciences, was brought by 29 peanut farmers in Texas who used Dow's potent new weedkiller Strongarm on their crops in the 2000 growing season (diclosulam is the active ingredient , see PAN PesticideInfo database for more information: http://www.pesticideinfo.org/Detail_Chemical.jsp?Rec_Id=PC37572 - ChemID). The crops died soon after, "They just plain withered away," one farmer reported to the DeMoines Register after applying Strongarm to 150 acres. The farmers said when Dow reneged on a promise to compensate the farmers for their losses, they informed Dow they would file a suit for damages.
Before the farmers filed their suit, however, Dow filed a case in federal court arguing that FIFRA shielded them from liability. The federal district court and an appeals court both ruled for Dow, following the lead of the California Supreme Court, which decided in favor of the pesticide manufacturer in a similar case in 2000.
Although it never acknowledged liability for the damage, Dow has changed the Strongarm's product label following the destruction of the Texas farmers' peanut crops, advising against use of the weedkiller in regions with high-alkaline soils. The company also stopped selling the product in Texas, New Mexico and Oklahoma, all of which encompass extensive areas of alkaline soils.
Last week's ruling is the Supreme Court's first on the 1972 revisions to FIFRA, and is revealing of the Court's approach to issues of pre-emption. In its decision, the Supreme Court rejected recent legal interpretations expanding federal preemption, arguing that "The long history of tort litigation against manufacturers of poisonous substances adds force to the basic presumption against pre-emption. If Congress had intended to deprive injured parties of a long available form of compensation, it surely would have expressed that intent more clearly. Moreover, this history emphasizes the importance of providing an incentive to manufacturers to use the utmost care in the business of distributing inherently dangerous items." The decision, written by Justice John Paul Stevens, then went further to suggest that liability lawsuits would strengthen federal law , "Private remedies that enforce federal misbranding requirements would seem to aid, rather than hinder, the function of FIFRA."
Several environmental groups joined EarthJustice in an amicus brief in the case, including Beyond Pesticides, 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 the Supreme Court decision at: http://a257.g.akamaitech.net/7/257/2422/27apr20050800/www.supremecourtus.gov/opinions/04pdf/03-388.pdf
Sources: Los Angeles Times, April 28, 2005 http://www.latimes.com; New York Times, April 27, 2005, http://www.nytimes.com; Beyond Pesticides Press Release, April 27, 2005, http://www.beyondpesticides.orgContact: PANNA.