Following back-to-back court victories, Beyond Pesticides, the Center for Food Safety (CFS), and others are celebrating this week.
The U.S. Supreme Court upheld an early $25 million award to a person with cancer who used too many Roundup (glyphosate) herbicides by rejecting a writ of certiorari in Hardeman v. Monsanto.
A nonprofit organisation named Beyond Pesticides with headquarters in Washington, D.C., described the Supreme Court petition as a “Hail Mary attempt” by Bayer-owed Monsanto.
A few days after the federal appellate court ruled that the U.S. Environmental Protection Agency’s (EPA) registration of glyphosate is invalid because the agency did not follow its review standards, an attempt to have the high court review the decision failed.
The EPA’s determination that the dangerous pesticide glyphosate is safe for people and endangered wildlife was overturned by the U.S. Court of Appeals for the Ninth Circuit, which sided with the Center for Food Safety (CFS) and its clients who were farmworkers and conservationists. The main ingredient in the world’s most popular pesticide, Roundup, manufactured by Monsanto-Bayer, is glyphosate.
The 2020 interim registration of glyphosate by the Trump administration was declared illegal in the 54-page ruling because “EPA shirked its duty under the Endangered Species Act (ESA) and failed to thoroughly assess whether glyphosate caused cancer.”
The petitioners in the case included the Rural Coalition, Farmworker Association of Florida, Organización en California de Lideres Campesinas, and Beyond Pesticides, who were all represented by the Center for Food Safety. Natural Resources Defense Council is in charge of consolidated litigation that also involves the Pesticide Action Network.
The Supreme Court’s decision to reject certiorari has far-reaching effects.
The Supreme Court prevented Bayer from running roughshod over the environment and public health, poisoning people, and flouting health and safety laws while EPA regulators shrugged off the rule of law by rejecting Bayer’s attempt to reverse jury verdicts for harming people with its cancer-causing weed killer glyphosate, according to Jay Feldman, executive director of Beyond Pesticides.
Bayer maintained that federal law preempted the “failure to warn” claims it was facing, which was at the heart of the case’s legal premise of preemption.
In other words, Bayer claimed that it was not required to disclose the health risks associated with its weed killer because the EPA’s licencing procedure enabled the product to be sold.
In an amicus brief, the Solicitor General supported those who had been harmed by Roundup and urged the Supreme Court not to hear the case.
With “great concern” over the Solicitor General’s ruling, Bayer retaliated by using trade groups as proxies to exert pressure on the Biden Administration and Department of Justice to withdraw their opposition to certiorari.
Without the high court’s reconsideration, Bayer will have to re-engage the more than 31,000 plaintiffs it chose to dismiss just after filing its appeal with the Supreme Court.
Bayer “respectfully disagrees,” according to press reports, with the Supreme Court’s ruling. To deter more plaintiff litigation, it also says it will keep pursuing a litigation strategy in federal courts.
Although the Hardeman case has been decided, Bayer stated in a statement that there are likely to be further cases, including Roundup lawsuits, that may raise preemption issues similar to those in Hardeman and may result in a circuit split.
Numerous people, including some political leaders, agricultural groups, and other stakeholders, backed the Bayer-Monsanto position.
For the second case, CFS provided the following context:
The EPA completed its risk evaluations for glyphosate’s effects on human health and the environment, and it implemented “mitigation measures” in the form of label modifications in an “interim registration review” decision that was made in January 2020.
EPA decided there is no cancer risk from glyphosate despite substantial gaps in its analysis, including reaching “no conclusion” for non-Hodgkin lymphoma, the most well-known malignancy associated with glyphosate. The amount of glyphosate that enters a user’s circulation following skin contact—an important route of occupational exposure—was not evaluated by the EPA either.
It is important to note that the EPA neglected to analyse any glyphosate product formulations, which include components outside the active ingredient (glyphosate) that may worsen the effects of pesticide exposure.
Finally, EPA needed to take into account the effects on vulnerable species and take additional measures to protect them from glyphosate because it continued to use the chemical with minimal, unsupported label revisions.
When CFS and its partners first filed the complaint in 2020, they included data demonstrating how the EPA disregarded the health dangers of glyphosate, including cancer risks, to farmers and farmworkers exposed during spraying.
Petitioners also contested the EPA’s choice on the grounds of environmental dangers and the plight of endangered species like the Monarch butterfly.
In May 2021, in response to a lawsuit brought by CFS and supporters, the EPA effectively-acknowledged serious mistakes in its provisional registration and requested permission from the court to redo its flawed ecological, cost-benefit, and Endangered Species Act studies.
Without giving a timeframe for a fresh decision, the government stated that Roundup should remain on the market in the meanwhile.
To “control litigation risk and not because of any safety concerns,” Bayer stated in July 2021 that it would stop selling its glyphosate-based herbicides (including Roundup) in the residential lawn and garden market in the United States in 2023.
Trials by jury are still conducted in California. In Hardeman v. Monsanto, one of the first in a string of well-publicized consumer lawsuits brought against Monsanto-Bayer, and in Pilliod v. Monsanto, the third appeal of such a claim, judges upheld judgments against Monsanto for cancer caused by Roundup last year.
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Despite the Environmental Protection Agency’s (EPA’s) repeated claims to the contrary, the World Health Organization (WHO) concluded in 2015 that glyphosate is probably carcinogenic to humans.
