Pesticides get a free ride

I love how Republicans support the family farmer.
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Change limits farmers from suing pesticide-makers
By Peter Eisler, USA TODAY

WASHINGTON — The Bush administration has adopted a new policy that aims to cut off farmers' ability to sue pesticide and herbicide makers when bug-and weedkillers don't work as promised on their labels and damage crops.
The new position, not announced publicly, is a sharp reversal in federal policy toward hundreds of thousands of farmers or anyone else who might claim damages from pesticide use.

In recent years, the government generally has supported people's right to sue manufacturers of pesticides that are alleged to have harmed crops or not performed as promised. But the administration is taking the position that federal law bars such suits, according to legal briefs and an Environmental Protection Agency memo obtained by USA TODAY.

The new interpretation will carry great weight in the courts. Farmers who file product liability, or tort, suits on charges of pesticide damage must defeat the government's position.

The policy shift is a huge win for the pesticide industry, which pushed for the change. Pesticide-makers face millions of dollars in suits each year alleging that their products caused damage.

Farm groups have mixed reactions to the new federal stance: some say there must be limits on lawsuits over pesticide performance or manufacturers will hesitate to experiment with new products that could help growers.

Tom Buis of the National Farmers Union, which represents 300,000 independent farms, acknowledges the conflict. "But if a pesticide not only doesn't do what it says it's supposed to do, but also kills your crop, that could cost you a year's income. There has to be some legal recourse, and (this change) could really limit that."

The administration's shift is based on a reinterpretation of the Federal Insecticide, Fungicide and Rodenticide Act. The act directs the EPA to set label requirements for agricultural chemicals — warnings on use and safety — and bars states from setting stricter rules.

Courts have had mixed opinions on whether the law "pre-empts" damage suits filed in state courts by farmers who have had bad results with a product. Many have ruled that pesticide-makers who comply with federal labeling rules are insulated from claims that they didn't warn of potential risks.

In 1999, the Clinton administration asserted that the labeling law did not block such claims. It took that stand in the case of some California walnut farmers who sought $150,000 for damage to three orchards after they mixed two pesticides that didn't warn against combined use. The farmers lost, but the federal position became an oft-cited legal pillar for farmers in other pesticide damage cases.

Last month, EPA General Counsel Robert Fabricant laid the legal basis for reversing the Clinton policy in a confidential memo. "Developments in the law and a reanalysis ... (of) the potential impacts of allowing such crop damage tort claims has led EPA to rethink the agency position," he wrote.

The memo echoes arguments made by administration lawyers in a brief filed this year in a case before the U.S. Supreme Court. In that case, the administration said the court should nullify a pesticide damage suit brought by Texas peanut farmers who claimed their crops were destroyed after they used a manufacturer-recommended mixture of two pesticides. The court did not rule on the merits of the administration's position.

Douglas Nelson of CropLife America, a pesticide trade group, says the new federal stance "corrects a misread of the law."

Erik Olson of the Natural Resources Defense Council says the change immunizes pesticide-makers from legitimate damage claims. The new policy also could bolster pesticide-makers' contention that federal labeling insulates them from suits alleging that their products caused broader health and environmental harm, Olson says.