Supreme Court preemption decision bugs pesticide makers.

The U.S. Supreme Court has affirmed the right of consumers to sue pesticide manufacturers in state court, despite the wording of a federal law that the defense said should preempt such lawsuits. The decision was hailed as a victory for environmental and consumer groups. (Bates v. Dow AgroSciences, LLC, 125 S. Ct. 1788 (2005).)

"The decision is critical. It is huge," said Jay Feldman, executive director of Beyond Pesticides, an environmental organization based in Washington, D.C. "One of the underlying issues here is whether the EPA adequately protects the public from adverse effects. And another is that people need the ability to seek redress in the courts. Without that, safety would quickly degrade."

The lawsuit was brought five years ago by 29 Texas peanut farmers, who said that a pesticide called Strongarm, manufactured by Dow AgroSciences (a subsidiary of Dow Chemical), had ruined their crops. The farmers said Dow should have known that the pH level of their soil made Strongarm inappropriate for them to use, and should have warned them that it would harm their peanut crops. They said they used the product according to its label directions, which encouraged using Strongarm in all peanut-growing areas.

Dow took the case to federal court, arguing that any state suit was preempted by the "uniformity" clause of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which says states cannot "impose or continue in effect any requirements" different from those required by federal law.

The Fifth Circuit agreed with Dow, finding that if a product and its labeling complied with all regulatory requirements, the pesticide maker could not be sued in state court. When the farmers appealed to the Supreme Court, the Bush administration--reversing a longstanding government position--sided with Dow and asked the Court to deny the appeal.

The Court, however, declined to do so, noting in its concise 7-2 opinion that "although FIFRA does not provide a remedy to those injured as a result of a manufacturer's violation of FIFRA's labeling requirements, nothing in [the clause] precludes states from providing such a remedy."

The Washington Legal Foundation, which filed an amicus brief on behalf of Dow, argued that private lawsuits were inconsistent with Congress's intent in granting prosecutorial discretion to the EPA. It also said a uniform voice on pesticide regulation was necessary because the United States is engaged in negotiating international standards for pesticide labeling.

The Court disagreed. "The long history of tort litigation against manufacturers of poisonous substances adds force to the presumption against preemption. 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 John Paul Stevens wrote for the Court. "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."

Feldman noted that simple compliance with federal regulatory requirements is not enough to ensure that a product is safe because "regulation of pesticides has been so [weakened] ." Furthermore, allowing federal law to trump state law in these cases would eliminate essential consumer protections.

"When compromises are made in pesticide protection laws, usually what's been compromised is the public's safety. Lawsuits fill that gap," Feldman said. "The only venue to remedy harm is the courtroom."