Author: Brigit Rollins

On May 25, 2023, the United States Supreme Court released its highly-anticipated opinion in Sackett v. EPA, a lawsuit concerning the scope of wetlands jurisdiction under the Clean Water Act (“CWA”). This decision from the Court intends to clarify when a wetland may be considered a water of the United States or WOTUS. Only those waters identified as a WOTUS receive CWA protection.

Prior to Sackett, the Environmental Protection Agency (“EPA”) interpreted WOTUS according to the Supreme Court’s 2006 decision, Rapanos v. U.S, which also considered the scope of wetlands jurisdiction. Instead of issuing a majority opinion in Rapanos, the Court issued both a plurality opinion – an opinion that the largest number of Justices signed onto, but not enough to result in a majority –  and a concurring opinion written by Justice Kennedy who agreed in the outcome of the case, but not the legal reasoning. In the plurality opinion, the justices concluded that only those wetlands that share a “continuous surface connection” with relatively permanent bodies of water should be considered WOTUS. The concurrence concluded that wetland jurisdiction should be determined based on whether the wetland possessed a “significant nexus” to a recognized WOTUS. A significant nexus exists when a wetland “significantly affect[s] the chemical, physical, and biological integrity of other covered waters[.]”

Following Rapanos, EPA engaged in several rulemaking attempts to define WOTUS, including the most recent rule finalized earlier this year that interpreted WOTUS to include wetlands that meet either test. However, many felt that the “significant nexus” test created uncertainty for regulated parties. The plaintiffs in Sackett asked the Supreme Court to formally adopt the “continuous surface connection” test, arguing that the plurality’s test was both a more accurate interpretation of the CWA and provided greater clarity for landowners. The Court agreed with the plaintiffs and decided to officially overturn the “significant nexus” test and confirm that only those wetlands that share a continuous surface water connection with relatively permanent bodies of water could fall under the definition of WOTUS and receive full CWA protection. To learn more about the Court’s decision, click here.

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Rollins, Brigit. “U.S. Supreme Court Issues Important Clean Water Act Ruling.” Southern Ag Today 3(26.5). June 30, 2023. Permalink

Photo by Cam Green: https://www.pexels.com/photo/aerial-view-of-wetland-near-a-river-10144176/

Lawsuits involving plaintiffs who have alleged that exposure to glyphosate caused their non-Hodgkin’s lymphoma continue to make their way through the court system. Over the past year, the issue of preemption has become a focus of these lawsuits. Preemption occurs when a “higher” level of government reduces the authority of a “lower” level of government and may occur when a federal law and a state law conflict. In glyphosate lawsuits, the defendant Bayer has argued that the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), the federal law governing pesticide regulation, preempts the state law failure-to-warn claims raised by most glyphosate plaintiffs.

FIFRA regulates the labeling of pesticides. A pesticide may not be distributed or sold in the United States until it has a label approved under FIFRA. Additionally, states may not impose any labeling or packaging requirements that are “in addition to or different from” those required by FIFRA. Plaintiffs bringing state law failure-to-warn claims are arguing that had the label included adequate warnings about the risks of glyphosate, then their injuries would not have occurred. So far, juries have found in favor of plaintiffs on these claims.

Bayer has appealed these jury findings, arguing that FIFRA’s prohibition on states imposing additional or different pesticide labeling requirements preempts failure-to-warn claims. If the state law claims are preempted by FIFRA, then Bayer argues that those claims should never have been raised in court.

Courts have split on the issue. A state court in California dismissed a plaintiff’s failure-to-warm claims, finding that the claims were preempted because the approved label for glyphosate does not require a carcinogen warning. However, both a California state appellate court and the Ninth Circuit have ruled the opposite. Those courts found that the failure-to-warn claims were not preempted because FIFRA prohibits pesticides from being “misbranded.” A pesticide is misbranded if its label does not contain a warning which may be necessary to protect human health. The Ninth Circuit concluded that FIFRA’s prohibition on misbranding was broader than the state law failure-to-warn and that such claims were therefore not preempted.

Bayer has appealed the Ninth Circuit’s decision to the Supreme Court. If the Court takes up the case, a ruling could impact not just glyphosate lawsuits, but any pesticide lawsuit where a plaintiff raises a state law failure-to-warn claim.

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Rollins, Brigit. “What is Preemption and How Might it Affect Glyphosate Litigation.” Southern Ag Today 1(51.5). December 17, 2021. Permalink