Pesticide Litigation

• Pages: 467-504

CHAPTER10

467

Pesticide Litigation

KEN W EINSTEIN

I. Introduction

Pesticides are comprehensively regulated under the Federal Insecti-

cide, Fungicide, and Rodenticide Act (FIFRA),1 which requires pes-

ticides to be registered by the Environmental Protection Agency

(EPA) before they can be sold. FIFRA also creates a risk-benefit

standard for approval of registration.2 Pesticide residues in food are

even more stringently regulated under the Federal Food, Drug, and

Cosmetic Act (FFDCA),3 which imposes a health-only safety stan-

dard for approval.4 While many cases arise under FIFRA and FFDCA,

pesticide litigation takes many other forms as well. Some of these

forms include EPA civil penalty actions for statutory violations; cases

seeking to enforce regulatory duties under the Endangered Species

Act (ESA), the Clean Water Act (CWA), and the National Environ-

mental Policy Act (NEPA); arbitrations seeking compensation for

use of a registrant’s proprietary data to obtain “follow-on” registra-

tions; and tort cases implicating the preemption of certain common-

law claims by federal pesticide law. This chapter discusses these as

well as other forms of pesticide litigation.

468 CHAPTER 10

II. FIFRA Registration

A. Registration and Labeling

It is unlawful to distribute or sell a pesticide that has not been regis-

tered by the EPA under FIFRA.5 To determine whether a product is

a “pesticide” subject to regulation under FIFRA, the EPA uses an

“intent” test. That is, the EPA regards a substance as a pesticide if it

is intended for a pesticidal purpose. The EPA’s regulations provide

criteria for discerning such intent based on the claims or conduct of

the seller, the characteristics of the product, or the seller’s knowl-

edge of the pesticidal use of the product.6

Prospective registrants must submit to the EPA information about

their product, including its chemical formula, a complete copy of its

label (including any claims to be made about it), which may not be

false or misleading, and a description of the tests the potential regis-

trant relied upon in making its claims about the product. Use of a

restricted-use pesticide inconsistent with its labeling—that is, use of

a pesticide in a manner that is not permitted on its label—is also a

violation of FIFRA.7 The EPA must approve a registration if (a) “its

composition is such as to warrant the proposed claims for it”; (b) its

label complies with FIFRA; and (c) it will perform its intended func-

tion in a manner that will not “generally cause unreasonable ad-

verse effects on the environment” when used in its customary

fashion.8

Information submitted pursuant to the registration provisions

(including test data) generally is available for public disclosure ex-

cept for limited categories of information such as product formulas,

manufacturing processes, the identity of suppliers, and production

data that the EPA determines “contains or relates to trade secrets or

commercial or financial information obtained from a person and

privileged or confidential.”9 Identifying information, such as the

name and location of certified applicators of restricted-use pesti-

cides also is prohibited from disclosure.10

After the EPA has granted a pesticide registration, the registrant

is under an ongoing obligation to report to the EPA any “additional

factual information regarding unreasonable adverse effects on the

environment of the pesticide.”11 This reporting requirement includes

expert opinions rendered by persons “employed or retained (directly

or indirectly) by the registrant . . . from whom the registrant re-

Pesticide Litigation469

quested [their] opinion,” and who would be qualified to testify in

court as an expert witness under the Federal Rules of Evidence.12

B. Enforcement

“Any registrant, commercial applicator, wholesaler, dealer, retailer

or other distributor” may be civilly liable up to $5,000 per offense

under FIFRA for violating any provision of the statute.13 The civil

penalty has been raised to $6,500 to account for inflation under

Section 4 of the Federal Civil Penalties Inflation Adjustment Act of

1990.14 Section 12j(a) of FIFRA specifically lists all unlawful acts.15

Any registrant, registration applicant, or producer who “knowingly

violates” any provision of FIFRA may be criminally liable up to

$50,000 in total, or imprisoned for up to one year, or both.16 The

administrator considers three factors when determining the size of

any FIFRA penalty: “the size of the business of the person charged,

the effect on the person’s ability to continue in business, and the

gravity of the violation.”17 Successor liability may be levied by the

EPA for fines imposed under FIFRA, where doing so “will facilitate

enforcement of the Act.”18

States that have adopted pesticide-use laws and implemented

proper enforcement procedures for such laws are primarily respon-

sible for enforcing FIFRA.19 At least one court has clarified, how-

ever, that Congress’s vesting of primary enforcement responsibility

in the states does not divest the Attorney General of the power to

criminally prosecute violators.20 On the other hand, private citizens

do not have a private right of enforcement.21

C. Cancellation and Suspension

If at any time the EPA finds that a pesticide or its label does not

comply with FIFRA or that a pesticide “generally causes unreason-

able adverse effects on the environment,” the EPA may do one of

three things: (1) cancel a registration; (2) suspend a registration pend-

ing cancellation (“ordinary suspension”); or (3) suspend a registra-

tion pending suspension (“emergency suspension”).22

Cancellation. If a pesticide “generally causes unreasonable ad-

verse effects on the environment,” the EPA may cancel the registra-

tion or hold a hearing to determine whether to cancel the registration

or to restrict its use.23 “Unreasonable adverse effects on the envi-