Here is the question that the DOJ amicus brief addresses. It could not be any clearer. Looming in the background is the sense that Bayer/Monsanto already owns the EPA, which will do what it wants in terms of whether to omit adding pesticide dangers to labels. So what Bayer/Monsanto needs to do is just makes the states 100% subservient to the EPA labels and BOOM, it wins. As do the hundreds of other pesticide companies.

What needs to be understood is that of the 6 entirely different approaches that Bayer has atempted regarding this issue, it only needs to win ONE. A favorable Supreme Court decision would mean that the bill in Congress is unnecessary—and it would save members of Congress from losing political capital by from having to vote for this huge giveaway to Big Chemical/Big Ag.

A Bayer-favorable Supreme Court decision would also preempt all the dozen or more bills in state legislatures dealing with whether pesticide lawsuits can continue to go forward at the state level.

About 3 years ago the Supreme Court chose not to take up a case like this one. However, now the Executive Branch is telling it not only to take up the case, but to rule in favor of Bayer and against the right of states to essentially challenge the validity of the warning labels approved by the (captured) EPA.

Two appeals courts have ruled against Bayer on similar matters, but one (the Third Circuit) ruled in favor. Here is what the DOJ brief says:

…the Third Circuit correctly held that EPA’s approval of Roundup labels without a cancer warning, combined with regulations requiring the agency’s approval before such a warning may be added, precludes imposition of state law tort liability based on petitioner’s failure to warn of cancer risks.

A reminder: this would essentially give all pesticide companies a free pass to sell dangerous products without adequate warning labels, so long as EPA has not required them to update the labels to reflect safety concerns, a process that takes years. While EPA has the right to require emergency updates (or any updates) it rarely uses this authority.

The brief claims, “EPA also formally reviews each pesticide registration every 15 years” which is true according to what the law requires, but false in terms of what EPA actually does. Would you be secure waiting 15 years for a newly identified side effect like cancer to be added to a warning label?

Here is the (I’d say deliberate misstatement to the Court) incorrect claim about the IARC finding on glyphosate that minimizes concern:

Pages 7-8 of the DOJ brief make this claim:

In 2015, a working group at the International Agency for Research on Cancer (IARC) classified glyphosate as a possible human carcinogen. IARC, 112 Some Organophosphate Insecticides and Herbicides: Glyphosate at 398 (2015). EPA has since taken different positions as to whether it would approve labels that reflected that development.

[I posted the screenshot at the bottom of this post as it is a bit difficult to read.]

But the IARC found it to be a probable human carcinogen,

https://www.iarc.who.int/wp-content/uploads/2018/07/MonographVolume112-1.pdf

Apparently the DOJ has previously argued for both sides of the issue of pesticide preemption on the same case:

I leave the rest to the lawyers. Cases were won in the past because the labels were inaccurate (misbranded) and the manufacturer knew it but failed to try to update the label. This case could go either way.

Here is the screenshot of the misstatement: