The Supreme Court next week will consider a case that has united red and blue states and pitted the Trump administration against itself.
On Monday, the justices will hear arguments over whether a state court rightfully awarded a $1.25 million verdict to a Missouri man who said the maker of the popular Roundup weedkiller failed to caution users about the product’s cancer risk — even as federal environmental regulators have repeatedly concluded that a warning is not required.
And while the Supreme Court’s conservative supermajority has shown an appetite for protecting big business, many of those justices have also demonstrated a desire to safeguard state power.
“It could lead to some interesting outcomes,” said Robert Percival, director of the environmental law program at the University of Maryland.
Backed by powerhouse Supreme Court advocate Paul Clement, agribusiness giant Monsanto has argued that it has been wrongfully inundated by lawsuits across the country that claim glyphosate, the active ingredient in Roundup, led users to develop non-Hodgkin lymphoma.
The Supreme Court in 2022 rebuffed a similar petition from Monsanto, which is owned by the pharmaceutical company Bayer. Since that time, however, federal appellate judges have reached different conclusions about the power of state courts to penalize the company for failing to warn customers, creating a “circuit split,” or a disagreement between the nation’s courts that only the justices can resolve.
The justices granted Monsanto’s most recent petition in January, a move seen as a preliminary win for the company.
As a general rule, the Supreme Court — which doesn’t take every case that comes its way — is thought to review rulings that it wants to reverse. That has given Monsanto’s legal challengers some pause.
If the court rules in Monsanto’s favor, said Christopher Seeger, proposed class counsel in a $7.25 billion settlement to resolve Roundup cancer claims, “you can expect trial verdicts to go down.” The settlement is designed to protect plaintiffs, even in the event the Supreme Court blocks state failure-to-warn claims, one of their most potent legal arguments against Monsanto.
At the same time, however, Monsanto’s courtroom opponents have attracted some powerful and unexpected allies — including Make America Healthy Again advocates and Republican-led states — that are backing them before the nation’s highest bench.
“The fact that red states see this as an important issue pretty much on the same terms we do is pretty remarkable and hopefully should carry weight with the Supreme Court,” said Bill Freese, science director at the Center for Food Safety, which filed an amicus brief opposing Monsanto.
Some court watchers have said that a ruling for Monsanto would conflict with prior decisions backed by the Supreme Court’s conservative supermajority limiting EPA’s regulatory authority and boosting state sovereignty.
Others said there is a difference between empowering states and directing them to do something that directly opposes federal law.
“If a state says you have to provide a duty to warn when EPA has said you don’t, there’s a much more obvious tension,” said Shannen Coffin, a partner at the law firm Steptoe, who wrote an amicus brief backing Monsanto at the Supreme Court. He spoke during a webinar on the case hosted by the Washington Legal Foundation.
When state and federal law collide, there is one that is meant to prevail, said William Jay, a partner at Goodwin & Proctor, who penned an amicus brief in support of Monsanto.
“Them’s the breaks because we have the supremacy clause in our Constitution,” he said during the Washington Legal Foundation webinar. “When there is a conflict between federal law and state law, federal law is supposed to win.”
Trump and MAHA are at odds
The Trump administration has already sided with and will split argument time with Monsanto, a major blow to Health Secretary Robert F. Kennedy Jr. and his army of anti-corporate MAHA followers.
EPA and Justice Department attorneys have filed numerous amicus briefs in support of Monsanto’s argument: Federal pesticides law gives EPA final say on labeling requirements. And because EPA says glyphosate does not cause cancer in humans, state authorities should not be allowed to require a cancer warning on Roundup.
Kennedy, who was once an environmental attorney fighting against Monsanto in court, said on a recent podcast appearance that Trump’s decision was something “I really don’t like.”
“It would throw out a lot of the state lawsuits and effectively give them immunity from liability, which, to me, it’s not good to give any company immunity from liability. It takes away all incentive for them to make the product safer,” Kennedy said on a February episode of the “Joe Rogan Experience.”
It wasn’t the first time Trump picked the weedkiller over MAHA. Trump in February signed an executive order extending national security protections to glyphosate and the mineral used to produce the chemical, a move that outraged MAHA supporters.
The fracture remains. The MAHA base is one that could be important to Republicans in the midterms; Trump recently met with outspoken activists on how to win back their support.
High-profile MAHA influencers, lawmakers and environmental advocates will protest outside of the Supreme Court on Monday. The lineup includes a unique array of speakers: Kennedy allies including MAHA Action President Tony Lyons, “Food Babe” blogger Vani Hari, “Glyphosate Girl” Kelly Ryerson and Reps. Thomas Massie (R-Ky.) and Chellie Pingree (D-Maine).
“This is the moment when we put all politics aside and we all come together in this big way to make our voices heard,” Hari said. “It’s going to be a spectacle you’ve never seen before in Washington.”
Red states are fighting Trump
Democratic- and Republican-led states have aligned against the Trump administration in the Roundup case.
In anamicus brief docketed earlier this month, Texas, Florida and Ohio made arguments similar to those presented by a coalition of blue states defending states’ rights to protect their residents from hazardous chemicals.
The red states said that the Federal Insecticide, Fungicide, and Rodenticide Act, which governs pesticide registration, allows plenty of room for states to regulate products like Roundup — although they took no position on the specific harms posed by glyphosate.
“State tort law is the traditional regulatory scheme for poisonous substances, and it serves vital compensatory and deterrent purposes,” the red state attorneys general wrote in their brief.
They echoed arguments presented by 18 Democratic-led states in a separate amicus brief.
“Though relevant state law — and jury verdicts in Roundup cases — vary to some extent,” the blue states wrote, “inconvenience to Monsanto is no reason to preempt state law where federal law allows considerable latitude.”
Big business v. state powers
Monsanto’s Supreme Court battle also positions protections for a big corporate interest — in this case, the former employer of Justice Clarence Thomas — against another issue championed by the court’s conservative wing, shielding state sovereignty.
“I’ll be keyed in most intently to the conservative justices who in the past have been strong proponents of states’ rights and limiting federal preemption,” said George Kimbrell, co-executive director and legal director of the Center for Food Safety. “Some of these same conservative justices have also been harsh critics of the job EPA does in regulating industry. To rule for Monsanto here, they would have to be fundamentally opposed to those prior positions.”
Ashley Keller, counsel of record for Monsanto’s legal challengers, has pointed to Supreme Court precedent as evidence that state law is consistent with FIFRA if both achieve the same goal of eliminating misleading statements or inadequate warnings about a product.
Monsanto’s opponents have pointed the justices back to their even more recent decision in Loper Bright v. Raimondo, which eliminated Chevron deference, or the theory that when federal law is ambiguous, judges should defer to an agency’s reasonable interpretation of the statute.
“[T]he only way that Monsanto can prevail is by showing that FIFRA delegates Chevron-like powers to EPA, allowing the Administrator — not judges and juries — to conclusively interpret the law and find the facts necessary to ascertain whether a pesticide is ‘misbranded,’” their brief said.
Coffin of Steptoe said he thought the Loper Bright argument was “a mis-fit” for the case, which deals not with a federal regulation but with the required EPA registration process for companies to market their products.
“It really is an attempt to try to fit this in the brave new world,” he said.
Oral arguments in Monsanto v. Durnell are scheduled to begin around 11 a.m. on Monday.
