How States Can Protect Residents from Harmful Pesticides

For decades, when a pesticide manufacturer’s product made someone sick, families had a path to justice: their day in court. But this summer, the Supreme Court closed that door for millions of Americans harmed by toxic pesticides.

In a 7-2 ruling in Monsanto v. Durnell, the Court sided with chemical company Monsanto, ruling that state courts can no longer hold the manufacturer accountable for failing to include a warning label on its products if the federal EPA hasn’t required one — no matter what the science shows or what a jury decides.

For a Court that has granted enormous authority to the states over the last decade, this ruling is a turn about from decades of precedent.

The ruling is more than a loss for the farmers and rural residents who have developed non-Hodgkin lymphoma and other cancers after long-term exposure to chemicals. It is a direct assault on states’ authority to protect their own residents. For years, states have been the last line of defense for communities harmed by dangerous chemicals, especially as existing federal law remained inadequate.

In 2005, the Court’s decision in Bates v. Dow Agrosciences affirmed that people harmed by pesticides could seek damages. This new ruling abandons that precedent, siding with a chemical industry that has already paid out billions of dollars in settlements to people it knowingly put at risk.

The timing is no accident. This decision arrives as the same industry has spent several years pushing “failure to warn” immunity bills — often called the “Bayer bill” — in statehouses across the country. Bipartisan coalitions of lawmakers in states from Iowa to Florida have successfully beaten back these bills.

Now, with the Court effectively handing the industry what it couldn’t get from the states, the stakes for proactive state action are even higher.

First, states should ban or restrict the sale and use of the most dangerous pesticides. Paraquat, linked to Parkinson’s disease and already the subject of a nearly $200 million legal settlement, could be phased out. Vermont, for example, became the first state in the nation to ban paraquat this year — and other states including Pennsylvania, Virginia, and Minnesota, hope to follow suit.

Second, states could explore policies that reduce the risk of pesticide exposure in communities. Some states including Hawai’i, Utah, and West Virginia are considering establishing mandatory buffer zones and pre-application notice periods around schools, day cares, homes, waterways, and other sensitive sites to limit pesticide drift. These policies could be effective in protecting residents who never chose to be exposed in the first place.

Third, state legislators could work with their congressional delegation to support the federal Americans vs. Poisonous Pesticides Act introduced in Congress in response to the ruling. This straightforward and protective bill, introduced by Rep. Anna Paulina Luna (R-FL), would streamline the process for manufacturer-initiated pesticide label changes that are more transparent of hazard risks than the current EPA-approved label.

None of this will be easy. The chemical industry has enormous resources, as shown by the coordinated state, federal, and court campaigns to limit their liability. Chemical companies like Monsanto and their allies will keep pushing to weaken regulation and accountability mechanisms for the over 50,000 chemicals used regularly in our food system.

However, it is important to remember that part of the reason the pesticide industry pushed so hard to get immunity through the Supreme Court was because they were losing in state courts and in state legislatures. All thanks to the power of communities and state policymakers refusing to be victims of corporate greed.

It’s important to remember that Durnell does not eliminate state power to legislate on this issue. While we will see the ramifications of this decision for decades to come, it’s made one thing clear: states’ power to protect their residents is more important than ever.

The Supreme Court has made its choice. Now states must prove that when Washington fails to protect people, state legislatures will.

This piece was first published on our sister site OtherWords.