June 23, 2003
The Supreme Court will soon consider a pair
of cases that could place the justices in the middle of a
high-stakes battle over whether herbicide and pesticide manufacturers
can be held liable in state courts for injuries to people
and damage to crops.
In one of the cases, the Bush administration has sided with
the pesticide industry, reversing a position taken by the
government under President Bill Clinton.
The cases, American Cyanamid Co. v. Geye, No. 02-367,
and Eyl v. Ciba-Geigy Corp., No. 02-1500, are on the
agenda for the Court's final private conference of the term
on June 26. At the conference, the justices will weigh whether
to grant review in these and dozens of other cases. Cases
granted would be argued in the fall.
At issue in both cases is whether the labeling provisions
of the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA) pre-empt state law tort actions for damage to crops
and injuries to people caused by pesticides. The dispute echoes
pre-emption issues the Supreme Court has faced in the context
of federal laws on tobacco product labeling and medical devices.
As in those other areas, FIFRA prohibits states from imposing
additional "requirements" that go beyond those imposed
in FIFRA itself. The industry, which wants to be insulated
from lawsuits at the state level, claims that permitting tort
actions in state courts amounts to an additional "requirement"
and therefore violates FIFRA.
"It's a huge issue," says Douglas Kendall, executive
director of Community Rights Counsel, which filed a brief
in Eyl with the Natural Resources Defense Council and
the group Beyond Pesticides. "A lot of common law state
actions hang in the balance." Environmental groups want
those injured by pesticides to be able to sue manufacturers
in state court.
In American Cyanamid, Texas peanut farmer Terry Geye
and his son Brandon used a mixture of two of the company's
herbicides, Pursuit and Prowl, on part of their acreage in
1993. Product brochures explicitly stated that the two could
be mixed to attack weeds that interfere with peanut crops.
Instead, Geye and his son claim the combination damaged their
crops and substantially reduced their yield. When they sued
the company, it invoked FIFRA pre-emption and won summary
judgment in the trial court. But a Texas Court of Appeals
and the state Supreme Court ruled that the suit was not pre-empted.
The company appealed to the Supreme Court, and the justices
last November asked Solicitor General Theodore Olson for his
views. In May, Olson told the Court in a brief that in spite
of two prior briefs filed in 1999 against federal pre-emption,
"that position no longer represents the view of the United
Olson wrote that the government now believes that state-law
damage claims create the sort of additional "requirement"
on labeling that is barred by FIFRA. In spite of this new
view, however, Olson told the Court that it should not take
up American Cyanamid because the Texas Supreme Court
ruling was interlocutory and not final in nature.
American Cyanamid's lawyer, Lawrence Ebner of the D.C. office
of McKenna Long & Aldridge, said in an interview the industry
is "certainly pleased that the solicitor general has
repudiated the past advocacy position and now agrees with
the vast majority of courts." But he disagrees with the
government on the finality issue and thinks the Texas ruling
is ripe for review. Ebner also says the Texas ruling conflicts
with other decisions of the California Supreme Court and the
U.S. Court of Appeals for the 5th Circuit, leaving major agricultural
areas with differing rules on liability.
Pesticide industry representatives met with lawyers in the
SG's office before the new brief was filed, Ebner and others
knowledgeable about the case say. "We explained why the
case is important," says Ebner.
It is common for the SG to consult with various parties in
a case before responding to an invitation from the Court to
file a brief. In this case, the government did not meet with
the Geyes' lawyer, Kerwin Stephens of Stephens & Myers
in Graham, Texas. Stephens declines to comment except to say
that the government's prior position on the pre-emption issue
was "well-reasoned and is the law."
In the other case before the high court, Public Citizen is
representing Harold Eyl, a maintenance worker in Wisner, Neb.,
who was exposed to Ciba-Geigy's herbicide Pramitol in 1993.
He was working in a playground, unaware that the herbicide
had been applied in the same area the same morning by another
city worker. Eyl soon developed dermatitis and vasculitis,
skin and blood ailments that left him permanently disabled
and unable to work.
He sued the company, claiming that its brochures failed to
warn about the dangers of Pramitol to bystanders. The company
unsuccessfully invoked FIFRA pre-emption and a jury awarded
Eyl $2.1 million in damages. The company appealed, and Eyl
argued that pre-emption should not apply because he was a
bystander. But the Nebraska Supreme Court reversed, finding
that the state tort action was pre-empted.
In a petition filed for Eyl with the Supreme Court in April,
Public Citizen cited the government's anti-pre-emption position
- since reversed - as evidence that the high court should
review the case. The Nebraska Supreme Court ruling and the
similar rulings of other courts have "eliminated injured
persons' rights to compensation under state law contrary to
congressional intent," the brief states. The group urges
the Court to take Eyl rather than American Cyanamid
because no one disputes the finality of the Nebraska judgment.
Public Citizen, in a later brief filed after the SG's reversal
in Cyanamid, calls the new government position on FIFRA
pre-emption "puzzling." But Alan Morrison, head
of Public Citizen Litigation Group, says the new stand is
easily explained: "We had an election two years ago."
OTHER CASES UP FOR REVIEW
- Alabama v. North Carolina, No. 132 Original.
Dispute over multistate compact on disposal of low-level
- Minnesota v. Martin, No. 02-117. Whether
federal Medicaid law permits states to place liens for cost
of government-paid medical care on all causes of action
that the injured Medicaid recipient may have.
- Monsanto Co. v. Bayer CropScience, No. 02-197.
Use of the bona fide purchaser defense in patent infringement
- Southern Building Code Congress International Inc.
v. Veeck, No. 02-355. Whether publication on a noncommercial
Web site of a legislative body's enactment of model building
code infringes copyright protections.
- Yates v. Henton, No. 02-458. Eligibility
for employee benefit plans.
- American Coalition of Life Activists v. Planned
Parenthood, No. 02-563. Whether a threatening anti-abortion
Web site is protected by the First Amendment.
- South Florida Water Management District v. Miccosukee
Tribe of Indians, No. 02-626. Whether pumping of
water by state water management agency constitutes an "addition"
of pollution that triggers licensing procedure under Clean
- Dee-k Enterprises v. Heveafil Sdn. Bhd.,
No. 02-649. Global price-fixing cartels and antitrust laws.
- City of Sacramento v. Barden, No. 02-815.
Whether maintenance of city sidewalks is the kind of activity
covered by accessibility requirements of the Americans With
Disabilities Act. Household Credit Services Inc. and MBNA
America v. Pfennig, No. 02-857. Conflict between the Truth
in Lending Act and Federal Reserve Bank regulations.
- Duke University v. John Madey, No. 02-1007.
Patent infringement and nonprofit universities.
- Exxon/Mobil Gas Marketing Co. v. Federal Energy
Regulatory Commission, No. 02-1265. FERC jurisdiction
over offshore natural gas pipelines.
- Doe v. Chao, No. 02-1377. Statutory damages
for violation of the Privacy Act.
- Pappas v. Bloomberg, No. 02-1441. Discharge
of police officer for anonymously disseminating bigoted
- Tennessee Student Assistance Corp. v. Hood,
No. 02-1606. Bankruptcy and the abrogation of state sovereign