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Dow, Bush Admin seek to pre-empt state environmental laws.
Bush Administration Rejecting Strong State Environmental Laws
While the Bush Administration and its conservative judicial appointees make a constant public show of their dedication to states' rights, their actions on environmental protection are increasingly moving in exactly the opposite direction. That is very bad news for Americans' desire for clean air, clean water and a healthy environment.
In the latest example of this say-one-thing-but-do-another, the Bush Administration last week filed a brief before the Supreme Court designed to immunize pesticide manufacturers from paying damages when their products cause harm.
The name of the case is Dow v. Bates. It involves a lawsuit brought by 29 Texas peanut farmers, seeking compensation for crop damage they say was caused by a Dow Agrosciences weed killer named Strongarm. According to the farmers, who sued for damages in a Texas state court, the pesticide nearly wiped out their entire crop.
But Dow intervened in federal court, where it persuaded a judge to to halt the farmers' lawsuit on the ground that the Federal Insecticide, Fungicide, and Rodentricide Act (FIFRA), preempts remedies provided under Texas state law. Hence the farmers would be prevented from winning damages under states' common law.
Now, with Dow v. Bates before the Supreme Court, the Bush Justice Department brief is arguing in favor of federal preemption over state law--which happens to be a reversal of its own established position against expansive federal preemption of state remedies under FIFRA.
In a summary of the situation, attorney Jason Rylander of the Washington-based Community Rights Counsel, writes that in Dow v. Bates, "The Supreme Court has an historic opportunity to level the playing field and remind the administration, Congress and the lower courts that federalism [the idea that states are free to innovate in policy matters not specifically addressed by Congress] is important. By rejecting preemption except where specifically mandated by Congress, the Court can protect the ability of states to regulate products and provide remedies to their citizens," says Rylander.
The Dow case is but one of several recent examples where the Bush Administration has acted to block state actions, as explained by Community Rights Counsel in a new book called Redefining Federalism.
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....But Dow intervened in federal court, where it persuaded a judge to to halt the farmers' lawsuit on the ground that the Federal Insecticide, Fungicide, and Rodentricide Act (FIFRA), preempts remedies provided under Texas state law.Hence the farmers would be prevented from winning damages under states' common law.
Now, with Dow v. Bates before the Supreme Court, the Bush Justice Department brief is arguing in favor of federal preemption over state law--which happens to be a reversal of its own established position against expansive federal preemption of state remedies under FIFRA. ....
The justice department or bush admin. isn't changing or rejecting the federal law.
Your article shows that FIFRA is already on the books that it preempts state law. The justice department looks like its presenting what currently exists to the supreme court so they can make an informed decision.
Hopefully the court will back state rights - but I hope they don't throw out all of FIFRA in their decision.
Why should any company, much less specific industuries, be exempted by the feds from being liable for the damage they cause.
Why shouldn't Dow have to accept the risks and results of business done in Texas?
Seems to me this demonstrates a larger problem with federal environmental regulation.
There's alot more to the story than the article indicates.
A bunch of peanut farmers are suing dow because of crop damage and are aleging false advertising, breach of warranty, and fraudulent trade practices under the Texas Deceptive Trade Practices Act.
Dow claims that the farmers missaplied the pesticide and that if they looked it up the chemical under the FIFRA regulations they would have known that certain soils in combination with the pesticide could damage crops.
Dow sought a declaratory judgment against the farmers in federal district court seeking, among other things, a judicial declaration that the FIFRA, 7 U.S.C. 136, preempts the farmers' state law claims.
Strongarm, an herbicide that controls the growth of weeds in peanut plants, is registered with the United States Environmental Protection Agency as required by FIFRA.
The farmers counterclaimed against Dow and sought dismissal of its declaratory judgment action.
The district court denied the farmers' motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted, and granted Dow's motion for summary judgment, holding that FIFRA preempts the farmers' state law claims. The Fifth Circuit affirmed, holding that FIFRA preempted all of the farmers’ state law claims.
btw...FIFRA is a comprehensive regulatory scheme aimed at controlling the use, sale, and labeling of pesticides. FIFRA requires, among other things, that manufacturers submit proposed product labels for EPA approval.
The peanut farmers advanced two arguments against preemption.
First, they contend that state labeling requirements related to product effectiveness are not within the scope of FIFRA’s express preemption clause.
Second, they assert that their claims are not sufficiently related to the content of the Strongarm label.
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