With the warming temperatures of spring comes decision making affecting plowing, planting, fertilizing, spraying… and court cases? The past few months have brought with them several court decisions with the potential to affect the availability and use of specific pesticides in coming years.
In April, the U.S. Court of Appeals for the 9th Circuit issued a ruling in League of United Latin American Citizens et al. v. Andrew Wheeler 17-71636. It is a case addressing the Environmental Protection Agency’s (EPA) approval of chlorpyrifos, a pesticide widely used in corn, soybeans and numerous specialty crops.
This decision is part of a years-long legal and policy battle over its status, the most recent of which began last August, when EPA was ordered to revoke all tolerances and cancel all registrations for the pesticide. The result of this ruling would have been a complete ban on its usage within the United States.
One month later, the Department of Justice appealed the decision, asking for a rehearing of the case with additional judges. The rehearing was granted and heard on March 26, 2019. In its subsequent ruling, the court gave EPA 90 days — until mid-July 2019 — to decide whether or not to ban its use.
However, even if it is permitted to be used on a nationwide scale, individual states have authority to make decisions on whether specific pesticides may be used within their boundaries. In 2018, Hawaii passed a law banning the use of the chlorpyrifos, and more recently, in early May, California did the same. In doing so, both states’ laws also included a transition period in which the pesticide may be used with restrictions before its eventual removal. A similar ban has passed through the legislature in New York and is awaiting the governor’s decision.
The second recent court decision that may impact producers in coming years involves glyphosate, the most-used herbicide in the United States. It is the third trial in a series of personal injury cases brought by plaintiffs who claim that the use of glyphosate has caused them to develop cancer.
In each of the cases, juries have returned multi-million dollar verdicts against Monsanto (which was acquired by Bayer in 2018).
In the most recent case, concluded on May 13 of this year, a jury awarded the plaintiffs $55 million in compensatory damages and $2 billion in punitive damages.
Bayer has appealed each verdict, arguing that scientific evidence does not support the argument that glyphosate is carcinogenic. Those appeals are pending.
Further, there are currently more than 13,000 similar cases pending in state and federal courts. A federal judge in California has ordered the company to engage in mediation to try to resolve the federal cases.
The next case anticipated to go to trial, however, is in state court in Missouri. It is scheduled to begin in August just outside St. Louis, which served as Monsanto's headquarters before the acquisition.
The court cases coincide with a periodic glyphosate registration review conducted by EPA. As part of that review, EPA has released a proposed interim decision for public comment. In that decision, the agency lays out its findings that there are no risks to public health when glyphosate is used in accordance with its current label. Further, the document concludes that glyphosate is not a carcinogen.
The proposed decision, however, does identify some ecological risks of its usage, such as injury to pollinators, as well as management proposals to address those risks. Anyone who is interested may comment on the proposal at here. Comments must be received by July 5.
So while you’re making your plans for this year, keep these court cases in mind. These decisions, and subsequent ones expected later this year, have the potential to affect your decision-making process in many years to come.