http://www.medill.northwestern.edu/~secure/docket/mt/archives/000845.php
April 28, 2005.
Medill School of Journalism
- On the Docket: Bates, Dennis, et al.
v. Dow Agrosciences LLC
Bates, Dennis, et al. v. Dow Agrosciences LLC
Docket: 03-0388
Term: 04-05
Appealed From: 5th Circuit Court of Appeals (June 11, 2003)
Oral Argument: Jan. 10, 2005
Opinion Issued: 9-0 for Bates (Stevens-April
27, 2005)
Subject: Preemption, herbicides, peanut farming
Question presented: Whether the Federal Insecticide, Fungicide,
and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq., preempts
petitioners' state tort claims alleging that application of
respondent's herbicide damaged petitioners' peanut crops?
By ERIC P. MARTIN, MEDILL NEWS SERVICE
By the time 29 western Texas peanut farmers realized what a
new weed killer was allegedly doing to their crops, it was too
late. The farmers say the herbicide had already made their peanut
crops unproductive.
The farmers had purchased Strongarm, an herbicide produced
by Dow AgroSciences, in spring of 2000, the same year the U.S.
Environmental Protection Agency approved the chemical to kill
weeds in peanut plantations.
Strongarm did kill some of the Texans’ weeds, but the
farmers say it also stunted their plants’ growth and led
crop productivity to plummet. The farmers’ losses were
estimated to be in the "multiple millions of dollars,"
according to Kimberly Keller, an attorney for the farmers.
When used in the alkaline soils of western Texas, the farmers
discovered, Strongarm damages peanut roots, a consequence that
is now indicated on the Strongarm label.
Although the farmers claim Strongarm was the only herbicide
they used, Dow argues the farmers used other chemicals that
could have harmed their crops. The company, a subsidiary of
Dow Chemicals, also claims that weather conditions may have
contributed to the farmers’ low productivity.
The farmers decided to sue in a Texas state court, saying they
were misled by Strongarm retailers and were not warned that
the herbicide was harmful in soils with high pH levels. As required
by Texas law, they sent Dow a letter warning that they planned
to sue. Their suit contained several charges, including false
advertising, fraud and design flaws.
Rather than face suit in a state court, Dow asked a federal
judge to bar the farmers from suing because, among other reasons,
the Federal Insecticide, Fungicide, and Rodenticide Act trumped
the state laws invoked by the farmers. The judge agreed, ruling
against the farmers in 2002.
Known by the acronym FIFRA, the federal law was passed in 1947
to create nationwide labeling standards for pesticides. After
several amendments, FIFRA now requires that pesticide manufacturers
submit products to the EPA for registration and approval of
the product labels.
The law’s preemption clause bars
states from imposing "any requirements for labeling or
packaging" that differ from federal standards.
The farmers appealed to the 5th Circuit Court of Appeals, arguing
that FIFRA does not preempt Texas labeling laws that regulate
pesticide effectiveness. This was because a 1978 change in the
federal law freed the EPA from much of the burden of regulating
how well pesticides work, they argued.
The farmers also argued that the lawsuit’s allegations
were unrelated to labeling, since they involved statements made
by Strongarm sellers.
Nonetheless, U.S. District Judge Martin Feldman, sitting temporarily
on the appeals court and writing for a unanimous court, said
FIFRA trumps "state laws that either directly or indirectly
impose different labeling requirements."
Feldman said the farmers’ suit was label-related even
though some claims were based on the statements of retailers.
This was because, if allowed to succeed, the lawsuit would "induce
Dow to alter its label."
Feldman agreed with Dow that claims that the herbicide didn’t
work properly were label-based claims in disguise, since they
were at their heart allegations that Dow did not warn the farmers.
The fact that the EPA is no longer required to regulate how
well pesticides work, Feldman said, is not enough to show that
the state regulations are not preempted.
The court ruled in June 2003 that FIFRA trumped all of the
farmers’ allegations.
In September 2003, the farmers asked the Supreme Court to review
the case.
Keller said this case gives the Court a chance to weigh FIFRA
against "every type of claim that could pop up" in
state courts.
The attorney argued that if the Court rules as the 5th Circuit
did, farmers will have no way to defend themselves against pesticides
that do not perform as promised. Since FIFRA does not give farmers
the right to sue pesticide manufacturers, farmers will have
to trust federal regulators to ensure that pesticides work as
companies say they will. But the EPA, Keller argued, no longer
regulates the effectiveness of pesticides.
"Our basic argument is going to be [that] no one is watching
this in-house," Keller said. "If farmers are not allowed
to bring suit when their crops are damaged by a product, it
allows and it licenses these companies to use farmers as their
guinea pigs."
If the Court rules against the farmers, it would also be a
blow to a state’s right to regulate products that come
into the state, Keller said.
Dow attorney Dean T. Barnhard said Keller’s argument
was both irrelevant and incorrect. He argued that the EPA still
has authority to test the effectiveness of pesticides.
"[The] Petitioners leap to the faulty conclusion that
just because the EPA requires submission of efficacy data selectively
rather than automatically during the initial registration process,
it does not exercise regulatory authority over label statements
concerning efficacy," Barnhard said.
Bernhard argued that even if the EPA didn’t regulate
pesticide efficacy, the wording of FIFRA is enough for the law
to trump any state laws that affect what companies put on pesticide
labels.
Barnhard was joined by U.S. Solicitor General Theodore Olson,
who filed an amicus brief, in arguing in favor of FIFRA’s
preemption over the state claim.
The Supreme Court accepted review of the case on June 28, 2004.
On April 27, 2005, the Court sided with Bates and the other
peanut farmers, concluding that FIFRA, the federal law, does
not preempt the farmers from seeking a remedy for pesticide
injuries in state court.
Writing the lead opinion in the case, Justice John Paul Stevens
concluded that the "long history of tort litigation against
manufacturers of poisonous substances adds force to the basic
presumption against pre-emption." He added: "If Congress
had intended to deprive injured parties of a long available
form of compensation, it surely would have expressed that intent
more clearly.”
Justice Stephen Breyer penned a one-paragraph concurrence to
underscore the role the Environmental Protection Agency has
in overseeing FIFRA’s future implementation.
Justices Clarence Thomas and Antonin Scalia concurred in the
judgment, but distanced themselves from the majority's reasoning
that tips the scales against pre-emption in favor of the states
and against the federal government. "These arguments, in
addition to being unnecessary, are unpersuasive," Thomas
wrote.
Attorneys:
For Dennis Bates, et al.:
Kimberly S. Keller
The Keller Group
(210) 857-5267
14302 Ben Brush Lane
San Antonio, TX 78248
For Dow Agrosciences LLC:
Dean T. Barnhard
Barnes & Thornburg
(317) 231-7433
11 South Meridian Street
Indianapolis, IN 46204-3535
Other:
For amicus U.S.:
THEODORE B. OLSON
Solicitor General, Counsel of Record
THOMAS L. SANSONETTI
Assistant Attorney General
THOMAS G. HUNGAR
Deputy Solicitor General
JEFFREY BOSSERT CLARK
Deputy Assistant Attorney General
JEFFREY P. MINEAR
Assistant to the Solicitor General
JAMES C. KILBOURNE
ROBERT H. OAKLEY
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
ANNA WOLGAST
Acting General Counsel
KENNETH VON SCHAUMBURG
Acting Deputy General Counsel
Environmental Protection Agency
Washington, D.C. 20460
