Supreme Court Rules Against Immunity for Dow Chemical

[Guest guest]

Good news! . . . Apparently this ruling came down last

year! . . . Very quietly! - Rogene

--------------------------------

http://reclaimdemocracy.org/articles_2005/court_denies_dow_immunity.php

Supreme Court Rules Against Immunity for Dow Chemical

Bush Administration filed brief asking Court to

protect pesticide companies and deny compensation to

victimized farmers

By G. Savage

First published by the <http://latimes.com L.A

Times, April 28, 2005

Editor's note: This article is a classic example of

how our regulatory agencies often are protecting giant

corporations, not citizens (or small businesses). The

issue is rarely spelled out so clearly as in this

case.

The Time's headline read: Supreme Court rules against

the White House's pro-business reading of a 1972 law.

A fine letter to the Times' editor by Rockne

-- director of the American Independent Business

Alliance -- follows the article, pointing out the

misleading, but common use of the label

" pro-business. "

The makers of pesticides and weedkillers can be sued

and forced to pay damages if their products cause

harm, the Supreme Court ruled Wednesday, rejecting the

view of the Bush administration and reversing a series

of lower courts.

The 7-2 ruling permits lawsuits by farmers whose

crops are damaged by pesticides, as well as suits by

consumers who are hurt by bug sprays.

In its first ruling on the scope of the 1972 federal

law regulating pesticides and related chemicals, the

justices said the requirement that chemical companies

submit their products for approval by the

Environmental Protection Agency did not " give

pesticide manufacturers virtual immunity " from being

sued if those products proved to be harmful to people,

plants or animals.

Wednesday's ruling restores the law to what it had

been before the 1990s.

During most of the 20th century, Americans who were

hurt or killed by toxic chemicals could sue the maker

of the product in state court. But more recently,

lawyers for the chemical industry convinced courts in

much of the nation, including California , that the

federal law regulating the pesticides barred such

lawsuits in state courts.

Four years ago, the Bush administration adopted this

pro-industry position,

saying that once a pesticide or weedkiller had won

EPA approval, it had a federal shield against being

sued - even if the product did not work as advertised.

The case of 29 Texas peanut farmers illustrated the

issue. Five years ago, they were persuaded by agents

of Dow Chemical Co. to try Strongarm, a powerful,

newly approved weedkiller. The farmers say Strongarm

killed not just their weeds, but also their peanut

plants.

" They just plain withered away, " said Ronnie Love,

63, who said he applied Strongarm to 150 acres when he

seeded his fields that spring. Despite a summer of

heavy watering, the peanut plants were stunted and

failed to produce a crop, he said.

Love and the other farmers say Dow reneged on a

promise to compensate them for millions of dollars in

crop losses. They notified the company that they

intended to sue in a Texas court under the terms of

the state's consumer protection law, which allows

suits for products that are defective or are

deceptively marketed.

But before they could file their claims, lawyers for

Dow went to a U.S. district court in Lubbock and

asserted it was shielded from such suits.

A federal judge agreed with Dow and dismissed the

farmers' suit. And the U.S. 5th Circuit Court of

Appeals in New Orleans agreed as well, saying federal

law that regulates pesticides preempts or bars

lawsuits in a state court. The California Supreme

Court handed down a similar ruling five years ago.

But the Supreme Court took up the case of the peanut

farmers - Bates vs. Dow AgroSciences - and ruled

Wednesday that the lower courts were wrong to throw

out such claims.

Justice s noted that the EPA did not

test products to see if they were effective. It simply

relies on information supplied by the manufacturer.

After the peanut crops in Texas failed, Dow changed

Strongarm's product label to say the weedkiller should

not be used in regions with high-alkaline soils, which

are common in Texas and Oklahoma .

The company did not acknowledge liability for the

earlier damage.

s described the 1972 law as an effort by

Congress to impose greater regulation on " poisonous

substances. " Converting it into a shield against

lawsuits would " create not only financial risks for

consumers, but risks that affect their safety and

environment as well, " he said.

" This is a huge win for farmers, and I think it will

have a big impact in the agriculture industry, " said

C. Frederick, the Washington lawyer who

represented the peanut farmers. " Pesticide makers and

farmers have to work together. And if something goes

wrong with a pesticide, the farmers deserve to be

compensated. Now the courthouse door is open to them

again after being closed for the past 15 years. "

Patti Goldman, a lawyer in Seattle for the

environmental group Earthjustice, said the ruling

would help consumers and workers harmed by pesticides.

She and other lawyers cited cases of children

sickened by pesticides that had drifted from fields

into residential areas and that of a young man who

died after riding a horse that had been sprayed with a

pesticide. Recently, such lawsuits had been dismissed

prior to a trial.

Wednesday's ruling does not mean the plaintiffs will

always win, the lawyers said, noting that they would

have to prove the product was defectively made or

inadequately tested to prevail in court.

" This just means that people will be allowed to sue

for compensation when they are harmed by a pesticide, "

Goldman said. " The court recognized that these

[EPA-approved] labels are written by the

manufacturers. "

The Bush administration, the chemical industry and

other business groups joined the case on the side of

Dow Chemical Co., arguing that the court should erect

a barrier to such lawsuits.

" This is a complete loss and a big disappointment, "

said Steve Bokat, general counsel for the U.S. Chamber

of Commerce. " Our concern is that this gives an

opening for the plaintiffs' bar to bring more tort

claims against large companies. "

In his opinion, s pointed out that the Clinton

administration believed that the federal pesticide

registration law did not shield manufacturers from all

lawsuits. The Bush administration reversed course in

2001 and said the law as originally written did block

such claims.

s called the new interpretation " particularly

dubious " and not entitled to much deference from the

high court. Chief Justice H. Rehnquist and

Justices Day O'Connor, M. Kennedy,

H. Souter, Ruth Bader Ginsburg and G.

Breyer joined the court's opinion.

Justices Clarence and Antonin Scalia dissented

in part, criticizing the court for " tipping the scales

in favor of the states and against the federal

government " by allowing lawsuits in state courts.

C 2005 Los Angeles Times

[Guest guest]

Lea,

You needn't worry about me! . . . Aside from a

shoulder that was sore, I'm doing better than I have

in a long time. Of course, I'm taking a bunch of

supplements, but they seem to be working!

You wouldn't believe everything I've been doing

lately! There simply isn't time enough in the day to

do everything I would like to do. I've been doing yard

work and pottery - getting ready for a Craft Sale next

Saturday, and planning some trips. . . plus square

dancing at our house three nights a week and classes

at church. And, I just bought a new electric kiln . .

.. Which is stressing me in a way, because I also want

to make eight large stained glass panels during the

summer - But with the kiln sitting there, I want to do

my pottery too!

Oh well . . . it's wonderful to feel stressed over

positive, rather than negative things. I can handle

this!

Hugs,

Rogene

[Guest guest]

That is so amazing Rogene, I hope I can be that busy some day. I still feel I will in time. Randy is still pressuring me to go the disability route. I keep telling him, I cant be labled disabled. I wont be. Not to mention it is a long stressful process, which includes seeing a certain kind of doctors. I dont want to see another doctor that will tell me I am crazy. It is so nice to hear you are so busy after all you have been through. Rogene S <saxony01@...> wrote: Lea,You needn't worry about me! . . . Aside from ashoulder that was sore, I'm doing better than I havein a long time. Of course, I'm taking a bunch ofsupplements, but they seem to be working! You wouldn't believe

everything I've been doinglately! There simply isn't time enough in the day todo everything I would like to do. I've been doing yardwork and pottery - getting ready for a Craft Sale nextSaturday, and planning some trips. . . plus squaredancing at our house three nights a week and classesat church. And, I just bought a new electric kiln . .. Which is stressing me in a way, because I also wantto make eight large stained glass panels during thesummer - But with the kiln sitting there, I want to domy pottery too! Oh well . . . it's wonderful to feel stressed overpositive, rather than negative things. I can handlethis!Hugs,Rogene

Talk is cheap. Use Messenger to make PC-to-Phone calls. Great rates starting at 1¢/min.

[Guest guest]

Hi . . .

I remember a couple doctors questioning me - asking if

I had applied for disability . . . I hadn't . . . In

fact, even though I couldn't do the simplest job

right, I never thought of myself as disabled! Looking

back, I guess I was for some time. However, I think

refusing to accept that way of identifying myself kept

me looking for ways to get better.

Looking back, I think that I thought one of my doctors

would recommend that I go on disabilty if I needed to

do so . . . If they didn't, then I must be OK! LOL!

Looking back, I can see that I was in such a fog I

couldn't make rational decisions for myself!

I'm neutral on disability. It can be a lifesaver if

you must have the income . . . It can be a stressor to

get it. . . And it can be a label that may pull you

down. But it can also allow one a chance to regroup

and prepare for the future. It all depends on how you

feel about it. I'd hate to think that all but the

long-term, sickest implant women will have to stay on

it for life.

I KNOW most women will get well enough to get their

life back. BUT, they must work at it. It won't happen

automatically when the implants come out.

Rogene

[Guest guest]

Rogene

I am so happy to hear that you are back to feeling like yourself

again. You continue to be such an amazing person and someone I

really look up to. We all need to know someone like you to give us

inspiration!

Love,Kathy

>

> Lea,

>

> You needn't worry about me! . . . Aside from a

> shoulder that was sore, I'm doing better than I have

> in a long time. Of course, I'm taking a bunch of

> supplements, but they seem to be working!

>

> You wouldn't believe everything I've been doing

> lately! There simply isn't time enough in the day to

> do everything I would like to do. I've been doing yard

> work and pottery - getting ready for a Craft Sale next

> Saturday, and planning some trips. . . plus square

> dancing at our house three nights a week and classes

> at church. And, I just bought a new electric kiln . .

> . Which is stressing me in a way, because I also want

> to make eight large stained glass panels during the

> summer - But with the kiln sitting there, I want to do

> my pottery too!

>

> Oh well . . . it's wonderful to feel stressed over

> positive, rather than negative things. I can handle

> this!

>

> Hugs,

>

> Rogene

>

[Guest guest]

Lea,

Thanks . . .

I don't do stained glass to sell . . . I would get

very depressed if I tried to justify my time by how

much I made working in glass.

I will send you an invitation to the photo album where

I keep photos of my work . . . Almost all of them are

in either windows or cabinet door in our home.

Love,

Rogene