Loper Bright and Preemption

Yesterday, the Supreme Court heard oral argument in Monsanto Co. v. Durnell. The facts of this case are likely not of concern to most constitutional law scholars, but the dispute is of serious concern to the business community. The plaintiff sued Monsanto (which is owned by Bayer) for harms caused by the Roundup herbicide. (Don’t call it a pesticide, as Justice Thomas–a former Monsanto employee–reminded us.) The jury awarded $1.25 million in compensatory damages based on a failure to warn about possible harms. Bayer counters that the EPA did not require those additional warnings, so the state tort claims is preempted.

Going into the argument, I struggled to count to five votes for the plaintiff.  Preemption is an area where the Court’s conservatives do not line up neatly. Justice Thomas, the Court’s most committed federalist, has often been skeptical of federal preemption. See his opinion in Hencely just last week. I though Justice Gorsuch would be in a similar spot. I was fairly certain Justice Kavanaugh would be troubled by the possible economic effects on companies like Monsanto, and would favor broad federal preemption. I suspected that Chief Justice Roberts would fall in a similar camp. Same for Justice Alito. I wasn’t sure where Justice Barrett would be. It It was conceivable that Justice Kagan would favor broad federal preemption to promote uniformity, but I was doubtful.

Having now listened to the oral arguments, I will stand by my prediction. Everyone lined up about where I expected. Despite Paul Clement’s best efforts, I’m not sure where Monsanto finds five votes. Indeed, the Justices seemed to have very few questions for Ashley Keller, counsel for the Durnell. Perhaps they were a bit tired, as the argument in Chartrie stretched nearly two hours, but Keller was able to talk uninterrupted for several minutes. And with about ten minutes remaining, and no further questions coming, Keller sat down. As a general rule, the side that gets the most questions is more likely to lose. Then again, the Justices may have been spent after the Fourth Amendment case.

Justice Alito was entirely silent during the argument except when he perked up during an exchange about Loper Bright. I flagged this issue in a prior post. Everyone agrees that Congress can preempt state law through a statute. But what about when an agency purports to preempt a state law through regulations? Under the Chevron regime, the agency would likely get deference when its regulation interprets a complex (ambiguous) statutory regime. But after Loper Bright, does that agency still receive deference? And if the agency does not receive deference, can a state court, in a tort suit, interpret the federal statute to determine if there is federal preemption? In other words, who gets to interpret the statute: the agency or the court. Who decides? Loper Bright would seem to suggest that courts decide legal questions, rather than agencies. Or does Loper Bright not envision a role for state courts to decide the preemptive effect of federal regulations?

Consider this colloquy:

JUSTICE KAVANAUGH: So the Solicitor General was wrong about that?

MR. KELLER: Yeah. Very respectfully, yes, he is. And you don’t give deference to the Solicitor General in interpreting FIFRA. You look at the words for yourself. So, yes, the United States is wrong about that. Then they go to the regulations. They quickly jump to the regulations. What’s the source of authority for those regulations? If you ask the EPA the source of authority for those regulations, I kid you not, it’s 136 to 136y. They cite the entire statute. That’s their source of authority. If you cite the entire statute as your source of authority, that’s a pretty good indication that you don’t really have a good textual source of authority. Again, maybe in the Chevron regime, we might have looked past that, but we’re in the Loper Bright regime. I think you need affirmative text for what they can regulate.

JUSTICE ALITO: Well, Mr. Keller did Loper Bright say one word about preemption?

MR. KELLER: No, it doesn’t, but I –

JUSTICE ALITO: Loper Bright is about the relationship between two branches of the federal government, right?

MR. KELLER: Well, I –I agree with that. I think it is always a separation of powers issue if you’re going to ask whether the executive branch gets to pronounce what the law is instead of the judiciary. And then, of course, that’s relevant in the preemption context.

JUSTICE ALITO: Why is it relevant? Preemption involves the relationship between the federal government and the states.

What follows is a fascinating exchange about precedent. Do the members that joined Loper Bright have a special insight about how that precedent should be extended in some other context? Or can a new majority of the Court then decide to extend Loper Bright, even if some of the members of the majority (including Justice Alito) disagree.

MR. KELLER: It –it does, and under the Supremacy Clause, federal law is the supreme law of the land, so what counts as federal law is relevant to every preemption inquiry. I –I would be surprised if Loper Bright were somehow cabined and not applied in preemption cases where a regulation is doing the work to create preemption. You have the separation of powers problem plus a federalism problem because you’re letting the executive, not Congress, preempt valid state law. That should only be done pursuant to a valid delegation.

JUSTICE ALITO: Well, your –your prescience about where the law might go is -is interesting, but it’s not there now, is it?

MR. KELLER: Well, I –I think that that’s what you meant in Loper Bright. You all know better than I do what you really meant in Loper Bright, but I think a rule that says the Loper Bright regime is cabined to separation of powers cases and doesn’t apply in preemption cases I don’t think makes analytical sense. You could draw that line. You’ve drawn lines before that maybe previously didn’t occur to me that subsequently emerged. So I’m not going to tell you you couldn’t do it.

In other words, the Court could not logically exclude preemption cases from the Loper Bright framework.

JUSTICE ALITO: You think that would be an irrational line to draw?

MR. KELLER: I do, yes, because Loper Bright is asking the same sort of question, who decides what the law is? Is it the judiciary or is it the executive branch? That is obviously relevant to preemption questions when we’re trying to figure out what the law of the United States says.

Who decides, as Judge Sutton would ask. This argument is tailor made for Justice Gorsuch. Again, if Thomas and Gorsuch rule for the plaintiffs, it will be tough to count to five. Then again, Justice Kagan might be an unlikely vote for Monsanto. She continued this exchange after Justice Alito finished:

JUSTICE KAGAN: Well, Loper Bright didn’t suggest that Congress couldn’t delegate power to agencies.

MR. KELLER: I agree.

JUSTICE KAGAN: And it seems here as though there’s a pretty big delegation of power to EPA to figure all these matters out.

MR. KELLER: I agree there is an important set of delegated powers to EPA. And there are many that we haven’t discussed that I do think would create labeling requirements. But the registration provision of 136a, which is where he and the government hang their hats, I do not think is this broad delegation to ultimately decide whether a pesticide is misbranded or not. I agree with you, though, there are express delegations of authority that I do think could create labeling requirements. I can give you 136w(c)(2).

JUSTICE KAGAN: Well, I mean, if we just sort of think about this scheme, right, it says to EPA you have to do this big study, you have to weigh costs and benefits, you have to figure out on the basis of that whether to register a pesticide, you have to do that again every 15 years, you have to keep track of things in the interim, you have to, you know, take seriously further information that industry gives you after registration.There just seems like a lot of stuff that the EPA does and is told by Congress to do to ensure the –the appropriateness of a particular pesticide.

MR. KELLER: I completely agree with you. FIFRA is structured in a way to maximally protect the consumer. So selling an unregistered pesticide is the first offense in 136j. But you also can’t sell a misbranded pesticide.

Justice Barrett had very few questions. I don’t know where she falls on this Loper Bright issue.

There would be some irony if the business community succeeded in Chevron, only to have that doctrine push back against federal preemption. I am not at all convinced Loper Bright has made an actual difference to the outcome of business cases, but narrowing the scope of federal preemption would make a huge difference.