Supreme Court Rules Against Immunity for Dow Chemical

Bush Administration filed brief asking Court to protect pesticide companies and deny compensation to victimized farmers.

By David G. Savage
First published by the L.A Times, April 28, 2005

 Editor’s note: This article is a classic example of how our regulatory agencies often are protecting giant corporations, not citizens (or small businesses). The issue is rarely spelled out so clearly as in this case.

The Time’s headline read: Supreme Court rules against the White House’s pro-business reading of a 1972 law. A fine letter to the Times’ editor by Jennifer Rockne — director of the American Independent Business Alliance — follows the article, pointing out the misleading, but common use of the label “pro-business.”

The makers of pesticides and weedkillers can be sued and forced to pay damages if their products cause harm, the Supreme Court ruled Wednesday, rejecting the view of the Bush administration and reversing a series of lower courts.

The 7-2 ruling permits lawsuits by farmers whose crops are damaged by pesticides, as well as suits by consumers who are hurt by bug sprays.

In its first ruling on the scope of the 1972 federal law regulating pesticides and related chemicals, the justices said the requirement that chemical companies submit their products for approval by the Environmental Protection Agency did not “give pesticide manufacturers virtual immunity” from being sued if those products proved to be harmful to people, plants or animals.

Wednesday’s ruling restores the law to what it had been before the 1990s.

During most of the 20th century, Americans who were hurt or killed by toxic chemicals could sue the maker of the product in state court. But more recently, lawyers for the chemical industry convinced courts in much of the nation, including California , that the federal law regulating the pesticides barred such lawsuits in state courts.

Four years ago, the Bush administration adopted this pro-industry position, saying that once a pesticide or weedkiller had won EPA approval, it had a federal shield against being sued – even if the product did not work as advertised.

The case of 29 Texas peanut farmers illustrated the issue. Five years ago, they were persuaded by agents of Dow Chemical Co. to try Strongarm, a powerful, newly approved weedkiller. The farmers say Strongarm killed not just their weeds, but also their peanut plants.

“They just plain withered away,” said Ronnie Love, 63, who said he applied Strongarm to 150 acres when he seeded his fields that spring. Despite a summer of heavy watering, the peanut plants were stunted and failed to produce a crop, he said.

Love and the other farmers say Dow reneged on a promise to compensate them for millions of dollars in crop losses. They notified the company that they intended to sue in a Texas court under the terms of the state’s consumer protection law, which allows suits for products that are defective or are deceptively marketed.

But before they could file their claims, lawyers for Dow went to a U.S. district court in Lubbock and asserted it was shielded from such suits.

A federal judge agreed with Dow and dismissed the farmers’ suit. And the U.S. 5th Circuit Court of Appeals in New Orleans agreed as well, saying federal law that regulates pesticides preempts or bars lawsuits in a state court. The California Supreme Court handed down a similar ruling five years ago.

But the Supreme Court took up the case of the peanut farmers – Bates vs. Dow AgroSciences – and ruled Wednesday that the lower courts were wrong to throw out such claims.

Justice John Paul Stevens noted that the EPA did not test products to see if they were effective. It simply relies on information supplied by the manufacturer.

After the peanut crops in Texas failed, Dow changed Strongarm’s product label to say the weedkiller should not be used in regions with high-alkaline soils, which are common in Texas and Oklahoma .

The company did not acknowledge liability for the earlier damage.

Stevens described the 1972 law as an effort by Congress to impose greater regulation on “poisonous substances.” Converting it into a shield against lawsuits would “create not only financial risks for consumers, but risks that affect their safety and environment as well,” he said.

“This is a huge win for farmers, and I think it will have a big impact in the agriculture industry,” said David C. Frederick, the Washington lawyer who represented the peanut farmers. “Pesticide makers and farmers have to work together. And if something goes wrong with a pesticide, the farmers deserve to be compensated. Now the courthouse door is open to them again after being closed for the past 15 years.”

Patti Goldman, a lawyer in Seattle for the environmental group Earthjustice, said the ruling would help consumers and workers harmed by pesticides.

She and other lawyers cited cases of children sickened by pesticides that had drifted from fields into residential areas and that of a young man who died after riding a horse that had been sprayed with a pesticide. Recently, such lawsuits had been dismissed prior to a trial.

Wednesday’s ruling does not mean the plaintiffs will always win, the lawyers said, noting that they would have to prove the product was defectively made or inadequately tested to prevail in court.

“This just means that people will be allowed to sue for compensation when they are harmed by a pesticide,” Goldman said. “The court recognized that these [EPA-approved] labels are written by the manufacturers.”

The Bush administration, the chemical industry and other business groups joined the case on the side of Dow Chemical Co., arguing that the court should erect a barrier to such lawsuits.

“This is a complete loss and a big disappointment,” said Steve Bokat, general counsel for the U.S. Chamber of Commerce. “Our concern is that this gives an opening for the plaintiffs’ bar to bring more tort claims against large companies.”

In his opinion, Stevens pointed out that the Clinton administration believed that the federal pesticide registration law did not shield manufacturers from all lawsuits. The Bush administration reversed course in 2001 and said the law as originally written did block such claims.

Stevens called the new interpretation “particularly dubious” and not entitled to much deference from the high court. Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined the court’s opinion.

Justices Clarence Thomas and Antonin Scalia dissented in part, criticizing the court for “tipping the scales in favor of the states and against the federal government” by allowing lawsuits in state courts.

© 2005 Los Angeles Times

 

To the Editor,

Re “Lawsuits Over Pesticides, Herbicides Allowed” (Nation, 4/28), your subhead reads, “Supreme Court rules against the White House’s pro-business reading of a 1972 law.” Yet as the story makes clear, there’s nothing inherently “pro-business” about the Bush Administration’s advocacy on behalf of the chemical industry — it’s favoring Dow Chemical and other giant pesticide companies at the expense of small farming businesses.

I’m not nitpicking a single headline choice, but pointing out a persistent misrepresentation conveyed by using “pro-business” to describe policies that favor the most politically powerful corporations, often to the detriment of America’s small businesses.

In the future, please avoid the overly broad term “business interests” in favor of identifying which business interests benefit and any that are harmed by particular actions or proposals.

Jennifer Rockne
The writer directs the American Independent Business Alliance