I’ve heard a lot of people talking about the Monsanto case and the claims that one of their products, Roundup, may cause cancer. However, the case before the Supreme Court was much more unique, involving state’s rights, intrastate commerce, and the limits of federal law and regulation.
Background
Whether you think Roundup causes cancer or is perfectly safe, do you have a right to sue for an allegation that it does? More specially for the case of Monsanto v. Durnell, can federal law prohibit you from suing in state court? That is the question before the Supreme Court.
Monsanto Company manufactures and distributes Roundup, a glyphosate-based herbicide designed to control weeds. The EPA has repeatedly evaluated glyphosate and repeatedly concluded that glyphosate is not likely to cause cancer. EPA’s assessment is shared by many other regulatory bodies around the world.
Monsanto Co. v. Durnell
Before we go any furthers, let’s talk about the EPA: The Environmental Protection Agency. According to their website:
The mission of EPA is to protect human health and the environment.
Environmental Protection Agency website
There’s just one problem with the EPA’s mission: It’s not constitutional.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
U.S. Constitution, Amendment X
The power to protect human health and the environment is not delegated to the United States anywhere in the Constitution. However, the question at hand is not about the EPA’s mission or whether or not Roundup causes cancer, but about the labeling requirements for it to be sold in interstate commerce.
In accordance with EPA’s view that glyphosate is not likely to cause cancer in humans, EPA has not required labels on glyphosate-based pesticides like Roundup to include a cancer warning.
Monsanto Co. v. Durnell
However, that doesn’t mean Congress has the legal authority to make the EPA the determiner of whether or not something is safe for humans; the problems in this case are much worse.
In 2019, John Durnell sued Monsanto in Missouri state court, alleging that he had used Monsanto’s Roundup products for about 20 years and that they had caused his non-Hodgkin’s lymphoma. As relevant here, Durnell brought a failure-to-warn tort claim, asserting that Monsanto should have included a cancer warning on Roundup’s label.
Monsanto Co. v. Durnell
Mr. Durnell has a grievance. He thinks that his non-Hodgkin’s lymphoma was caused by his 20 year use of Roundup. He claims that Monsanto violated state law (since the case was brought in state court) because their label failed to warn him of the this particular danger. Whether or not he has evidence to prove his case is not the issue here. Rather it’s whether or not he gets his day in court.
A jury agreed and awarded Durnell more than $1 million on the failure-to-warn theory. On appeal, the Missouri Court of Appeals affirmed, …
Monsanto Co. v. Durnell
So both a Missouri jury and the Missouri Court of Appeals agreed that Mr. Durnell did have a legitimate grievance and that his redress should be $1 million. Even the federal appeals court agreed.
The Court of Appeals rejected Monsanto’s argument that the Federal Insecticide, Fungicide, and Rodenticide Act expressly preempted Durnell’s failure-to-warn claim, … This Court granted certiorari.
Monsanto Co. v. Durnell
Until SCOTUS, every court agreed that Mr. Durnell had a legitimate grievance. However, the Supreme Court would disagree.
The Federal Insecticide, Fungicide, and Rodenticide Act
What is this Federal Insecticide, Fungicide, and Rodenticide Act? FIFRA, 7 USC §§136 of the United States Code claims to regulate insecticides and environmental pesticide control. Remember, nothing in the Constitution delegates to the United States the authority to regulate insecticides and environmental pesticide control. Congress can regulate interstate commerce, but only interstate commerce, not commerce within a state. But that didn’t stop Congress from falsely claiming supremacy.
FIFRA’s preemption clause, entitled “Uniformity,” provides that a “State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.” 7 U. S. C. §136v(b). FIFRA therefore preempts a state-law labeling requirement that differs from the federal labeling requirements imposed under FIFRA.
Monsanto Co. v. Durnell
According to SCOTUS, the Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA, not only preempts state labeling laws, and by extension, lawsuits in state court regarding the labeling of products. What is this “uniformity” claim in FIFRA?
(b) Uniformity
Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.
7 USC §136v
Congress, however, does not have the legal authority to tell states what laws they can pass regarding commerce within the state. That goes beyond the powers delegated to the United States.
Federal law therefore requires Monsanto to sell Roundup with the label that EPA approved at the initial registration and that EPA has subsequently re-approved on multiple occasions—that is, the label without a cancer warning.
Monsanto Co. v. Durnell
Federal law can require that Monsanto sell Roundup with a certain label, but only in interstate commerce. The Constitution does not delegate to Congress the power to regulate intrastate commerce. Since Mr. Durnell sued under state law, this federal law does not apply.
Meanwhile, as the Court’s precedents make clear and as the parties agree, state tort duties constitute state labeling requirements. … Durnell’s state tort claim would require Monsanto to add a cancer warning to its labels, which is “in addition to” and “different from” Monsanto’s federal-law labeling obligations.
Monsanto Co. v. Durnell
Yes, Mr. Durnell’s claim would require Monsanto to have additional labeling in order to legally sell Roundup in Missouri. Commerce within the State of Missouri is an issue for Missouri state law. FIFRA’s claim of supremacy fails constitutional muster, as Justice Thomas gets into in his concurrence.
Durnell’s counterarguments are unpersuasive.
Durnell contends that a Missouri failure-to-warn claim, like FIFRA itself, simply requires manufacturers to include adequate warnings to protect human health and not to include false or misleading statements. But that argument operates at far too high a level of generality and disregards the central and comprehensive role that EPA performs in making labeling determinations under FIFRA’s registration provisions.
Monsanto Co. v. Durnell
Except it was Congress who operated at far too detailed a level to pass constitutional muster. For example:
(a) Requirement of registration
Except as provided by this subchapter, no person in any State may distribute or sell to any person any pesticide that is not registered under this subchapter.
7 USC §136a
That language goes far beyond interstate commerce, but claims to dictate to states what they may or may not sell within their borders, and under what conditions.
(2) Durnell argues that EPA’s regulations and its procedures for registering pesticides and approving pesticide labels exceed or contravene EPA’s statutory authority under FIFRA. Durnell is incorrect. FIFRA empowers EPA to “prescribe regulations to carry out the provisions of [FIFRA],” §136w(a)(1), and expressly directs EPA to register pesticides and “determin[e]” that the pesticide’s “labeling” complies with FIFRA’s many specific requirements. §136a(c)(5)(B).
Monsanto Co. v. Durnell
What Durnell should have argued is that FIFRA exceeded Congress’ power to regulate interstate commerce and that the Constitution did not delegate to the United States the power to regulate pesticides. Meaning that the legislation was not made pursuant to the Constitution, making FIFRA not only unconstitutional, but void. At least that is what the Supreme Court said in Marbury v. Madison, ex parte Siebold, and Norton v. Shelby County.
During that extensive registration process, EPA critically evaluates the pesticide’s label to ensure that the label contains all warnings necessary to protect human health. And after EPA decides the appropriate warnings for a pesticide’s label, a manufacturer is legally required to use that label unless and until EPA subsequently approves or requires a new label.
Monsanto Co. v. Durnell
Isn’t the question of EPA’s evolution of the pesticide label part of the question? The EPA claimed that all warnings necessary to protect human health were on the label. Yet multiple studies seem to show at least the possibility, if not outright claim, that glyphosate exposure causes cancer. Since no one delegated to Congress the authority to anoint an executive agency with the power to determine what is and is not safe, they had no authority to supersede a state’s right to regulate commerce within their borders.
Thomas Concurrence
While Justice Thomas concurred with the majority opinion, he also pointed out some serious deficiencies in FIFRA.
I agree with the Court’s interpretation of the Federal Insecticide, Fungicide, and Rodenticide Act and its application of our preemption precedents. I therefore join its opinion in full. I write separately to call attention to some of the underlying constitutional infirmities in the Act.
Monsanto Co. v. Durnell
What could these underlying constitutional infirmities be?
First, the Act likely exceeds Congress’s authority under the Commerce Clause, which authorizes Congress to regulate “Commerce . . . among the several States.” Art. I, §8, cl. 3.
Monsanto Co. v. Durnell
I think the phrase “likely exceeds” is a tremendous understatement. FIFRA blatantly exceeds Congress’ power under the Commerce Clause.
This power allows Congress to regulate “selling, buying, and bartering” across state lines. United States v. Lopez,… It does not allow Congress to regulate “agriculture” or “manufacturing,” activities entirely “separate” from “commerce.”
Monsanto Co. v. Durnell
I wish Justice Thomas would remember that the next time some USDA, Dept. of Labor, or EPA regulation is before the court.
The Act is a “comprehensive regulatory statute” that appears to regulate more than the Commerce Clause allows. … A[s] this Court has acknowledged, the Act “regulate[s] the use, as well as the sale” of pesticides and “regulate[s] pesticides produced and sold in . . . intrastate . . . commerce.” …. The Act, among other things, requires pesticide manufacturers to register their pesticides with the Environmental Protection Agency, submit information about them, and use EPA-approved labels before selling the pesticides anywhere. … A manufacturer that does not use the approved label may be subject to civil and criminal penalties, regardless of whether the goods are sold in interstate commerce. … And, the Act goes even further, making it illegal for consumers to use registered pesticides in ways inconsistent with their label. … The Act thereby purports to regulate how an individual who owns pesticide products such as Roundup can use those products, even if he bought them at a locally owned store down the street, and even if he seeks to use them in his own backyard. Accordingly, the Act is likely unconstitutional in many applications.
Monsanto Co. v. Durnell
But this isn’t the only constitutional issue Justice Thomas found in FIFRA.
Second, the Act raises questions about Congress’s ability to delegate core legislative power to the EPA. As the Court explains,… Congress granted the EPA the authority to issue regulations for carrying out the Act. … The EPA has thereby issued “extensive regulations . . . dictating what must appear on a pesticide’s label.” … Through these label regulations, the EPA exercises immense power over private businesses and individuals. Violating certain regulations is a federal offense. … The EPA thus appears to “make substantive rules . . . punishable with fines or imprisonment,” a core legislative power that cannot be delegated.
Monsanto Co. v. Durnell
Justice Thomas’ statement holds true not just for FIFRA, and the EPA, but every federal agency where Congress has claimed to delegate rule-making power. Article I, Section I delegates all lawmaking power to Congress. Not the executive branch, or even federal courts. Therefore no entity but Congress can create anything with the power of federal law, at least if we’re following the supreme law of the land.
Justice Thomas’ third point is also very important.
Third, and relatedly, the Act raises questions about the extent to which federal agency action can preempt state law, a form of preemption taken for granted by the parties in this case. … The Supremacy Clause makes “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties . . . the supreme Law of the Land.” … The Constitution, federal law, and treaties thus preempt any conflicting state law. …
Monsanto Co. v. Durnell
I wonder why Justice Thomas left out part of the Supremacy Clause? Specifically, “and all Treaties made, or which shall be made, under the Authority of the United States.” Not all treaties are the supreme law of the land, only those that are made under the legitimate authority of the United States. In other words, the United States cannot violate the Constitution by treaty. Justice Thomas appears to skip over the fact that only “Laws of the United States which shall be made in Pursuance” of the Constitution are the supreme law of the land. Therefore, since Congress claims powers not delegated to it by the Constitution in FIFRA if it’s not the supreme law of the land.
Justice Thomas does make an interesting point. Federal rules and regulations are not part of the supreme law of the land.
Administrative action appears difficult to fit under the Supremacy Clause. Agency action is not the Constitution. Nor is it a treaty. And, “Laws” are made by Congress and the President through bicameralism and presentment. … So, if “agency action qualifies as ‘supreme Law,’” then it arguably “violates the Constitution’s separation of powers.” … On the other hand, if agencies cannot make “Law” their actions seem to fall “beyond the Supremacy Clause’s purview” and cannot preempt state law.
Monsanto Co. v. Durnell
A nicely laid pincer move on FIFRA. If an agency’s rules are law, it violates the separation of powers, and if agency rules are not law, so they are not supreme.
I do have to ask, Justice Thomas, that if the act is so unconstitutional, why did you concur that its illegal mandates should prevail? It sounds like you’re talking out of both sides of your mouth.
Jackson Dissent
It is admittedly rare that I agree with Justice Jackson. However, in this dissent she makes a pretty good point.
Monsanto argues that 7 U. S. C. §136v(b)—a provision of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)—expressly preempts Durnell’s failure-to-warn claim. ... (providing that state labeling “requirements” that are “in addition to or different from those required under” FIFRA are preempted). Today, the Court agrees. The majority emphasizes that the Environmental Protection Agency (EPA) has consistently registered Roundup—a precondition to Monsanto’s ability to sell that product—and has thus approved Roundup’s label without a cancer warning. … According to the majority, the EPA’s registration decision and approval of Roundup’s label created a labeling “requirement” under FIFRA: namely, that Monsanto sell Roundup with the label exactly as the EPA approved it. … Thus, the majority concludes, Durnell’s lawsuit added a labeling requirement that federal law did not require, triggering preemption per §136v(b).
Monsanto Co. v. Durnell
Justice Jackson brings up the idea that an EPA label preempts state law because of §136v(b) of FIFRA. As Justice Thomas pointed out in his concurrence, this does not square with either the separation of powers or the supremacy clause of the Constitution, but Justice Jackson points out another constitutional violation, even if she doesn’t specifically name it in her dissent.
In so holding, the Court departs from the near-unanimous view of the many state and federal courts that have rejected this preemption argument. In my view, the majority should have joined that chorus. Durnell’s failure-to-warn claim is not “in addition to or different from” FIFRA’s mandates; it is equivalent to FIFRA’s key labeling requirement—the misbranding prohibition. And Durnell’s claim does not conflict with any other FIFRA “requirement” for §136v(b) purposes because the EPA’s registration of a pesticide and approval of its label does not create a labeling requirement under FIFRA.
Monsanto Co. v. Durnell
Justice Jackson focuses on whether or not a state’s law conflicts with, rather than augments, FIFRA’s labeling requirements. The point she missed is that by prohibiting Mr. Durnell’s lawsuit, the court violates the Petition Clause of the First Amendment.
Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances.
U.S. Constitution, Amendment I
Conclusion
What was the court’s conclusion in this case?
Held: FIFRA expressly preempts Durnell’s state-law failure-to-warn claim because the claim would require Monsanto to add a cancer warning to Roundup’s label.
Monsanto Co. v. Durnell
The court ignored the Tenth Amendment, separation of powers, supremacy clause, and even the petition clause to claim that the federal government has the power to order states to accept their labeling for products sold within the state. Both FIFRA and this court have usurped the legitimate powers of states to regulate commerce within their borders, as Justice Thomas pointed out. They have also delegated regulatory powers to the EPA that have the force of law, and denied the people their right to petition for a redress of their grievances.
Remember, this case stared in Missouri state court, where a jury agreed with Mr. Durnell. The court skirted very close to violating the Seventh Amendment’s jury clause.
no fact tried by a jury, shall be otherwise re-examined in any Court of the United States
U.S. Constitution, Amendment VII
Technically, the court didn’t re-examine the decision of the jury, they simply said Mr. Durnell had no right to file a lawsuit in a Missouri court for a violation of Missouri law.
I don’t know if it was ego, politics, or just plain cowardice that led Justice Thomas to ignore is own constitutional issues with the law and concur with the court’s opinion, but it is yet another example of why I do not support people, only policies.
