Solicitor General Urges Review of FIFRA Preemption

Earlier this year the Supreme Court called for the views of the Solicitor General on whether it should grant certiorari in Monsanto v. Durnell, which presents the question whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts state-law-based “duty to warn” suits against manufacturers of pesticides registered by the Environmental Protection Agency (EPA). The case arises out of litigation over Monsanto’s Roundup pesticide and its active ingredient, glyphosate.

Yesterday, the Solicitor General filed its brief, urging the Court to grant certiorari in Durnell. The brief supports Monsanto’s position both on the merits (concluding that FIFRA registration does preempt such claims) and that there is a circuit split warranting the Court’s review. While the latter point may be more important to the justices (there is a split among the U.S. Courts of Appeals for the Ninth, Eleventh, and Third Circuits), the bulk of the brief is devoted to explaining why the Justice Department believes FIFRA preempts such claims. Should the Court grant certiorari, it is fairly clear what position the Solicitor General’s office will take.

The brief is consistent with the the Trump Administration’s pro-preemption perspective in other environmental contexts, such as climate litigation. On the other hand, it may conflict with the preferences of MAHA-types within the Administration. Secretary of Health and Human Services Robert F. Kennedy Jr. has both been a critic of Roundup and has supported litigation against Monsanto.

Assuming certiorari is granted in this case (and I suspect it is likely), it will provide additional clarity on the current Court’s view of preemption questions. While it is common to think that conservative justices are likely to be pro-preemption because they are generally supportive of the business community, the Court’s current conservatives are actually split on such questions, largely due to federalism concerns (see, e.g., the 3-3-3 split in Virginia Uranium). This is one reason I have argued that, while Trump’s appointments to the Court have made it more conservative, it is not at all clear that they have made the Court more “pro-business.”