Stakes high as supreme court set to rule on law involving Monsanto’s weed-killing pesticide

The US could face foreign attacks, food shortages and agricultural “devastation” if the supreme court rules against Monsanto in a closely watched case over pesticide regulation that is set for arguments later this month, according to a series of legal briefs supporting the company.

In contrast, opposing legal briefs warn that if the court sides with Monsanto, consumers will be stripped of their rights to sue when they develop cancer or other serious diseases they attribute to exposure to dangerous chemicals. Companies will be able to hide product risks with little accountability, they warn.

The case centers on glyphosate – a widely used weed-killing pesticide that has long been a favorite of farmers, but also has been scientifically linked to cancer in multiple studies.

The court’s task is to determine if federal law essentially pre-empts states’ labeling requirements for products that could cause harm.

The issue is galvanizing people across the US, spurring arguments that cross political lines. Hundreds of organizations and individuals, including elected officials from dozens of states and former high-ranking federal officials, have filed lengthy legal briefs detailing arguments they hope will sway the court’s decision.

Many have also been vying – via a supreme court “lottery” – for a ticket to watch the 27 April hearing in person. And members of the Make America Healthy Again (Maha) movement are planning a “People v Poison” rally outside the courthouse they hope will draw thousands of protesters.

“It’s an important case,” said Allen Rostron, associate dean of the University of Missouri-Kansas City School of Law. “I’d characterize it as one significant battle in a much wider and longer war over these kinds of issues about how best to balance interests in public health and safety against other concerns.”

Monsanto, owned since 2018 by the German conglomerate Bayer, believes a ruling in its favor would help put an end to lawsuits brought by people who say using Roundup herbicide and other glyphosate products caused them to develop cancer, and Monsanto failed to warn them of the cancer risk.

An employee adjusts Roundup products on a shelf at a store in San Rafael, California, on July, 9, 2018. Photograph: Josh Edelson/AFP/Getty Images

After losing multiple jury trials, the company has paid billions of dollars to resolve the bulk of the lawsuits and is proposing to spend another $7.25bn toward a class action settlement aimed at resolving up to 60,000 cases still pending.

The core of Monsanto’s case before the supreme court is its position that under the Federal Insecticide, Fungicide, and Rodenticide Act (Fifra), it cannot be held liable for failing to warn of a cancer risk associated with its products if the Environmental Protection Agency (EPA) has not found such a risk exists.

“EPA has determined that glyphosate and Roundup do not cause cancer and that a warning stating otherwise is neither required nor permitted under Fifra,” the company states in its brief to the court.

In taking up the case, the court said it will specifically examine whether Fifra pre-empts a “label-based failure-to-warn claim” when the EPA has not required the warning.

More than 100 individuals and organizations have filed briefs opposing Monsanto’s position, arguing that federal law clearly carves out space for separate state labeling requirements, including for warnings of product risks.

They point to lower court rulings and a 2005 supreme court ruling on the issue.

Establishing a new interpretation of Fifra pre-emption would effectively immunize manufacturers of dangerous products from accountability, they say.

Attorneys general for the states of Texas, Florida and Ohio cited the 2005 case in a brief urging the court not to rule for Monsanto, and saying “pre-emption through federal agency action poses particular threats to state sovereignty”.

Many opponents also say in court filings that the EPA has a track record of failing to properly regulate chemicals found to be harmful to human health, and point out that the EPA’s most recent review of glyphosate safety was vacated by a federal court after the court determined the agency’s assessment was not scientifically sound.

Among those arguing against Monsanto’s position are eight high-ranking former EPA officials; US senator Cory Booker; and a group of scientists whose legal brief warns of health hazards they say are posed by glyphosate.

More than a dozen farmworker groups also weighed in against Monsanto, pointing to what they say are “significant gaps” in EPA requirements for scientific evaluation of pesticides.

In contrast, more than 100 other groups and individuals have aligned with the company in court filings, including elected officials from farm states and dozens of agricultural organizations.

Many in the “pro-glyphosate” groups, as some refer to themselves, equate a loss on the labeling issue with forcing glyphosate from the market and argue that without glyphosate, the nation’s food production would be in jeopardy.

“To remove glyphosate from the market would pose an immediate, devastating risk to America’s food supply,” several farm groups warn in their legal brief.

Many cite what they say is a proven track record of glyphosate safety, and what they say is extensive regulatory review.

Attorneys general for 15 states are among those siding with Monsanto, as are more than 30 elected representatives from Missouri, Kansas, North Dakota, Iowa, Kentucky and Arizona.

Missouri state senator Jason Bean filed a brief with the court arguing that if the court doesn’t help shut down lawsuits against Monsanto, the litigation could lead to “further reliance on a foreign adversary, namely China”, which leaves the United States “vulnerable to future attacks”.

US solicitor general D John Sauer also filed an amicus brief favoring Monsanto, citing “EPA’s considered judgments about what warnings are actually necessary to protect public health … ” and a need for pesticide label “uniformity” across the country.

Sauer’s position is backed by Donald Trump, who issued an executive order in February citing glyphosate as a “cornerstone of this nation’s agricultural productivity and rural economy” and ordering that glyphosate production be protected.

The political pressure should play no role in the court’s decision, said Nora Freeman Engstrom, a professor at Stanford Law School.

“The Trump administration has made clear how it wants the supreme court to rule – but the court is going to read Fifra, and … the court is going to conduct its own pre-emption analysis,” she said.

“In some areas, the views of the federal government are entitled to special deference. This isn’t one of those areas.”

This story is co-published with the New Lede, a journalism project of the Environmental Working Group