Beyond pesticides, the Center for Food Safety (CFS) and others are doing victory dances this week after back-to-back wins.
In refusing a writ of certiorari in Hardeman v. Monsanto, the U.S. Supreme Court has awarded $25 million in advance compensation to a cancer patient who overused Roundup (glyphosate) herbicides.
Beyond Pesticides, a 501(c)3 nonprofit organization headquartered in Washington, D.C., called the unsuccessful Supreme Court petition Monsanto’s “Hail Mary” attempt due to Bayer.
The failure to get the High Court review came just days after the federal appeals court ruled that the U.S. Environmental Protection Agency’s (EPA) registration of glyphosate was illegal because that the agency failed to meet its review standards.
The United States Court of Appeals for the Ninth Circuit sided with the Center for Food Safety (CFS) and its farmworker and conservation customer representatives in reversing the EPA’s ruling that the toxic pesticide glyphosate is safe for humans and endangered wildlife. Glyphosate is the active ingredient in Monsanto-Bayer’s flagship weedkiller Roundup, the world’s most widely used pesticide.
The 54-page notice concluded that the Trump administration’s 2020 interim registration of glyphosate was illegal because “the EPA failed to adequately consider whether glyphosate caused cancer and shirk its obligations.” under the Endangered Species Act (ESA)”. Represented by the Center for Food Safety, petitioners in the lawsuit included the Rural Coalition, Florida Farmworkers Association, Organización en California de Lideres Campesinas and Beyond Pesticides. A consolidated case is led by the Natural Resources Defense Council and includes the Pesticide Action Network.
The Supreme Court’s denial of certiorari has wide-ranging repercussions.
“By rejecting Bayer’s efforts to overturn jury verdicts for harming people with its carcinogenic weedkiller glyphosate, the Supreme Court is preventing the company from ignoring the environment and public health, poisoning people and flouting health and safety laws while EPA regulators shrug off the rule of law,” said Beyond Pesticides executive director Jay Feldman.
As Bayer argued, the case centered on the legal theory of preemption, with the company claiming that the “failure to warn” lawsuits against it were anticipated by federal law.
In other words, Bayer argued that because the EPA’s registration process allowed the chemical to be marketed, it was not required to communicate the health hazards of its weedkiller.
In response, Bayer tried to get tough and employed proxy business groups to attempted to pressure the Biden administration and Justice Department to reverse their opposition to certiorariexpressing “serious concern” about the opinion of the Solicitor General.
Without a High Court review, Bayer will have to re-contact the more than 31,000 plaintiffs it decided to dismiss just after launching its petition to the Supreme Court. According to dispatches, Bayer “respectfully disagrees” with the Supreme Court’s decision. It also indicates that it will continue to pursue a litigation strategy in federal courts to discourage further litigation with plaintiffs.
“While this decision brings the Hardeman case to an end, there will likely be future cases, including Roundup cases, that will present preemption issues like Hardeman to the United States Supreme Court and could also create a split in circuit,” Bayer said in a statement.
The Bayer-Monsanto side had many supporters, including some elected officials, farm organizations and other stakeholders.
The CFS offered this context for the second case:
In a “provisional registration review” decision for glyphosate Posted in January 2020, the EPA finalized its human health and environmental risk assessments and adopted “mitigation measures” as the label changes.
Despite significant flaws in its review, the EPA concluded there was no cancer risk from glyphosate, including coming to “no conclusion” about non-Hodgkin’s lymphoma, the most well-known cancer linked to glyphosate. with glyphosate. The EPA also has not assessed how much glyphosate enters a user’s bloodstream after skin contact, a major route of occupational exposure.
Critically, the EPA has not tested product formulations of glyphosate, which contain ingredients other than the active ingredient (glyphosate) and may increase the harmful effects of pesticide exposure. Finally, since the EPA continued to use glyphosate with minor and unsubstantiated label changes, it needed to consider the impacts on endangered species and do more to protect them from glyphosate.
The CSA and its allies initially filed the lawsuit in 2020, incorporating evidence showing how the EPA ignored glyphosate’s health risks, including cancer risks, to farmworkers and farmers exposed during spraying. The petitioners also challenged the EPA’s decision based on environmental threats and endangered species, such as the monarch butterfly.
In response to the lawsuit by CFS and its allies, in May 2021, the EPA effectively grave admitted mistakes in its provisional registration and asked the court for permission to redo the agency’s erroneous ecological, cost-benefit and Endangered Species Act assessments. However, the agency said Roundup is expected to remain on the market in the interim, with no time for a further decision.
In July 2021, Bayer announcement it would end sales of its glyphosate-based herbicides (including Roundup) in the U.S. residential lawn and garden market in 2023 to “manage litigation risk and not because of safety concerns.”
In California, jury trial continue to be detained. Last year, the courts affirmed a judgment against Monsanto for Roundup cancer in Hardeman vs. Monsanto-one of the first in a series of high-profile lawsuits filed against Monsanto-Bayer-and in the third appeal of such a claim in Pilliod versus Monsanto.
While the EPA has repeatedly stated that glyphosate does not cause cancer, the World Health Organization (WHO) found in 2015 that glyphosate is likely carcinogenic in humans.
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