The first half of 2022 has seen a lot of development in the area of environmental law. From lawsuits to regulatory changes, the following is a non-exhaustive overview of recent events in the environmental law realm.
Glyphosate Litigation
Litigation brought by plaintiffs who claim that the glyphosate in Roundup caused them to develop cancer continues to develop in 2022. Since 2016, thousands of these cases have been filed in federal and state courts.
As the litigation around glyphosate has progressed, the question of whether the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) preempts state law failure to warn claims commonly raised by plaintiffs has become a central issue. FIFRA is the primary federal law governing pesticide use in the United States. A pesticide may not be legally sold until it has been properly registered and labeled under FIFRA. Although FIFRA grants states some authority to adopt their own pesticide regulations, it prohibits them from imposing any labeling or packaging requirements that are “in addition to or different from” those required under FIFRA. 7 U.S.C. § 136v(b). Plaintiffs claiming that exposure to glyphosate caused them to develop cancer typically raise state law failure to warn claims, arguing that the defendant pesticide manufacturer failed to warn them of the health risks associated with using Roundup. In response, the defendants claim that because FIFRA does not allow states to make labeling requirements that are “in addition to or different from” the federally registered labels. Because the registered glyphosate label does not contain a cancer warning, the defendants argue that FIFRA preempts the plaintiffs’ failure to warn claims and that all such claims should be dismissed. To learn more about the preemption argument in glyphosate litigation, click here.
Last year, two different glyphosate lawsuits were appealed to the United States Supreme Court. Both suits asked the Court to consider the issue of preemption. Hardeman v. Monsanto Co., No. 19-16636 (9th Cir. 2021) was appealed from the Ninth Circuit Court of Appeals. In that case, the jury found in favor of the plaintiff at trial, and on appeal the Ninth Circuit ruled that FIFRA did not preempt the plaintiff’s failure to warn claim. According to the court, the plaintiff’s failure to warn claim was not preempted because FIFRA prohibits pesticides from being “misbranded.” 7 U.S.C. § 136j(a)(1)(E). Under FIFRA, a pesticide is misbranded if the label fails to include any warning necessary to protect human health. 7 U.S.C. § 136(q)(1)(G). Pilliod v. Monsanto Co., No. A158228 (Cal. Dist. Ct. App. 2021) was appealed to the Supreme Court from the California First District Court of Appeal, which upheld a lower court decision that FIFRA did not preempt the plaintiffs’ failure to warn claims. The California state court relied on the same reasoning as the Ninth Circuit.
The Supreme Court declined to hear either Hardeman v. Monsanto Co. or Pilliod v. Monsanto Co. This means that both lower court rulings will remain intact, and that the preemption issue is still unsettled. There has been some speculation that the Supreme Court may be more interested in taking up the issue later on if a ruling from a different circuit court of appeals creates a circuit split. However, it is not clear if such a split will ever occur. Currently, the only other federal appellate court to consider preemption in a glyphosate lawsuit has reached the same conclusion as the Ninth Circuit.
In Carson v. Monsanto Co., No. 21-10994 (11th Cir. 2022), issued just weeks after the Supreme Court refused to hear either Hardeman v. Monsanto Co. or Pilliod v. Monsanto Co., the Eleventh Circuit Court of Appeals ruled that FIFRA did not preempt the plaintiff’s state law failure to warn claims because of FIFRA’s prohibition against misbranding. Additionally, the court noted that the defendant could not rely on Roundup’s registration label as a defense against failure to warn claims because FIFRA states that “[i]n no event shall registration of an article be construed as a defense for the commission of any offense under this subchapter.” 7 U.S.C. § 136a(f)(2). In other words, the Eleventh Circuit ruled that a pesticide manufacturer cannot point to a properly registered label as a defense against either misbranding or other labeling claims.
While the decisions from the Supreme Court and Eleventh Circuit represent wins for the plaintiffs, recent lower court rulings in glyphosate cases have favored the defendants. In both Johnson v. Monsanto Co., No. 21CV20291 (Or. Cir. Ct. June 17, 2022) and Shelton v. Monsanto, No. 1816-CV17026 (Mo. Cir. Ct. June 9, 2021) juries ruled in favor of the defendant, concluding that exposure to Roundup did not cause the plaintiffs to develop cancer. Together with two other cases from 2021, four juries have now ruled in favor of the defendant in glyphosate cases. However, with more trials scheduled for later this year, it is unclear how future juries will rule.
Endangered Species Act
Environmental regulations adopted by the Trump administration have continued to face scrutiny throughout the first half of 2022. In particular, Endangered Species Act (“ESA”) regulations passed by the Trump administration have recently been subject to review by both Fish and Wildlife Service (“FWS”) and the courts.
In order to protect threatened and endangered species, the ESA grants FWS the authority to designate “critical habitat” for any species listed under the Act. Designated critical habitat receives certain ESA protections aimed at preserving the habitat that endangered species need to survive. While the term “critical habitat” is specifically defined in the text of the ESA, the word “habitat” is not. From the time the ESA was passed in 1973 until December 2020, the term “habitat” went undefined. A 2020 rule issued by FWS formally defined the term “habitat” as “the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.” 85 FR 81421. This definition was based off a ruling from the United States Supreme Court in Weyerhaeuser Co. v. U.S.F.W.S., 139 S.Ct. 361 (2018) which concluded that in order for an area to be designated as critical habitat for a species, it must first function as habitat for that species. The 2020 rule attempted to build on the ruling from Weyerhaeuser Co. v. U.S.F.W.S. by adding that in order to be habitat, an area needs to contain at least some of the resources necessary to support the species it is meant to be habitat for. The definition faced criticism from environmental groups who claimed the rule excluded important habitat from protection, such as areas that could become habitat for a species as its range shifted, or areas that had once been habitat and could be again after restoration.
On June 24, 2022, FWS published a final rule in the Federal Register officially repealing the 2020 habitat definition rule. Following that final rule, the term “habitat” under the ESA is once again undefined. Upon reconsideration, FWS found that the ruling in Weyerhaeuser Co. v. U.S.F.W.S. did not address what areas should qualify as habitat, or direct FWS to adopt a regulatory definition of habitat. Additionally, FWS found that the 2020 habitat definition rule was in conflict with the text of the ESA which defines “critical habitat” to include areas that are “essential to the conservation” of the species. 16 U.S.C. § 1532 (5)(A)(ii). Because the text of the ESA does not limit critical habitat only to areas that contain resources necessary to support a species, FWS found that its definition of “habitat” ran afoul of the ESA. For those reasons, FWS chose to rescind the 2020 habitat definition rule.
Along with the 2020 habitat definition rule, several ESA regulations adopted by FWS in 2019 have also been overturned. The 2019 ESA regulations made several changes to how the ESA was carried out. Those changes included changing the criteria for listing a species under the ESA and for designating critical habitat, repealing a rule that automatically granted threatened species the same protections as endangered species, and raising the threshold for when other federal agencies had to consult with FWS on actions that would impact listed species. Click here to learn more about the 2019 ESA regulations.
Several states and various environmental groups filed a lawsuit to challenge the 2019 regulations. The plaintiffs in Ctr. for Biological Diversity v. Haaland, No. 19-cv-05206 (N.D. Cal. July 5, 2022) claimed that the regulations violated federal law and undermined the goals of the ESA. In a decision issued on July 5, 2022, the court delivered a win for the plaintiffs by vacating the 2019 ESA regulations. The court based its decision to overturn the regulations on FWS’s own intentions to review and revise or repeal the regulations. According to the court, because FWS seemed unlikely to readopt the 2019 regulations after review, overturning the regulations was an appropriate remedy.
Following the court’s decision in Ctr. for Biological Diversity v. Haaland, and the formal repeal of the 2020 habitat definition rule, the ESA will now be implemented largely according to the regulations that were in place prior to 2019.
Clean Water Act & WOTUS
Litigation over how to implement section 401 of the Clean Water Act (“CWA”) has continued into 2022, with various states urging the Ninth Circuit to vacate a 2020 regulation limiting the authority of states to act under section 401. Under the CWA, no party may make a direct discharge of pollutants into protected waters without first receiving a permit. However, before receiving a permit, the applicant must obtain a water quality certification from the state with jurisdiction over where the proposed discharge would occur. Because the CWA directs water quality standards to be set at the state level, section 401 grants states the opportunity to review proposed discharges to ensure that they will not violate water quality standards. During this review process, states can either certify the proposed discharge as is, certify it only if the applicant agrees to meet certain conditions imposed by the states to maintain water quality, or reject the proposal. If the proposal is rejected, the permit will not be issued.
In 2020, the Environmental Protection Agency (“EPA”) adopted a final rule that modified how section 401 was carried out. Under the 2020 rule, the amount of time that states had to review each certification request was limited to one year, the scope of the changes that states could make to a discharge proposal prior to certification was reduced, and states were prevented from setting conditions for certain types of discharges. The 2020 rule faced legal challenge, and at first plaintiffs were successful in getting a California federal court to vacate the rule. According to the court, vacatur of the rule was appropriate because it found that the rule was so flawed that EPA would not adopt it again after review. To learn more about that lawsuit and section 401, click here.
The United States Supreme Court issued a ruling in April 2022 staying the lower court’s order to vacate the 2020 rule. In a one-paragraph ruling, the Supreme Court prevented the lower court’s order from going into effect while the Ninth Circuit considered an appeal of the decision. The case is now before the Ninth Circuit where the challengers have asked the court to either affirm the lower court’s order vacating the rule, or overrule the order entirely and leave the 2020 rule in effect while EPA considers a replacement rule. It is currently unclear how the Ninth Circuit will decide. Until it issues a decision, section 401 of the CWA will continue to be implemented according to the 2020 rule.
Along with focus on section 401, the definition of the term “waters of the United States” (“WOTUS”) under the CWA continues to receive attention as EPA’s most recent regulatory efforts to define the term progress into 2022. Although EPA released a proposed rule to repeal the Trump administration’s WOTUS rule in late 2021, it is still drafting the rule that will ultimately replace the Trump rule to become the new WOTUS definition. As part of its rulemaking effort, EPA hosted a series of roundtable discussions across the country to consult with states, local governments, and various other stakeholders on what should be included in the final definition. The last of those discussions was held on June 24.
At the moment, EPA’s regulatory agenda indicates that the agency will not release a proposed rule to officially redefine WOTUS until November 2023. Unless EPA changes this timeline, it is likely that the proposed rule will be released after the Supreme Court issues a decision in Sackett v. EPA, No. 21-454 U.S. (2022), a lawsuit concerning the degree to which wetlands should be included in the definition of WOTUS. At the moment, the Court is scheduled to hear arguments in October 2022 and issue a decision early next summer. It is unclear what impact the decision will have on EPA’s rulemaking efforts. See here for more information about the case.
Conclusion
The first half of 2022 has seen multiple regulatory and judicial actions carried out in the environmental law arena. The National Agricultural Law Center will continue to provide updates as the second half of 2022 progresses.
To read the Ninth Circuit’s opinion in Hardeman v. Monsanto Co., click here.
To read the California appellate court’s decision in Pilliod v. Monsanto Co., click here.
To read the Eleventh Circuit’s opinion in Carson v. Monsanto Co., click here.
To read the court’s opinion in Ctr. for Biological Diversity v. Haaland, click here.
To read the text of FIFRA, click here.
To read the text of the ESA, click here.
To read the text of the CWA, click here.
For more National Agricultural Law Center resources on environmental law, click here.