Supreme Court should review the government’s flip-flop on EPA labeling

As a former chairman of the House Judiciary Committee and House Science Committee, I am very concerned with the U.S. Solicitor General Elizabeth Prelogar’s recent position on preemption. It relates to pesticide registration and labeling in the Monsanto Company v. Hardeman lawsuit, which involved claims related to Roundup pesticide. In addition to concerns with the position taken in the solicitor general’s brief, I am disheartened that part of the justification for the change of position from prior Department of Justice (DOJ) filings in the same case is based on “the change in Administration”.

I have a keen interest in our judicial system and the role of the United States government involving itself in the system. I am also very familiar with issues related to preemption and specifically pesticide labeling.

In a stunning reversal of the government’s prior position, the solicitor general recently submitted a brief to the Supreme Court recommending the court deny review of a case involving competing requirements for product labels. Previously, as part of this same litigation while under review at the Ninth Circuit, the DOJ convincingly argued that federal law governing pesticide labeling precludes states from imposing additional labeling requirements. However, earlier this month, the solicitor general, who oversees government litigation before the Supreme Court, took the opposite position and argued against the court hearing this important case.

This is exactly the kind of case the Supreme Court should take up. The court has a long history of reviewing cases in which there is a “circuit split” — i.e. an appeals court in one part of the country has reached a different conclusion than another appeals court.

In this unique case, the government has taken inconsistent positions with itself. Previously, the DOJ supported preemption. The current solicitor general (which is actually a part of the DOJ) now argues that the federal pesticide registration and labeling requirements do not preclude states from imposing additional labeling requirements — even if those requirements run counter to federal findings. This disagreement is akin to a circuit split and warrants the high court stepping in to review so that there can be certainty regarding the preemptive status of the federal law at issue.

In an extraordinary admission that its analysis was in-part driven by politics, not sound policy, the U.S. solicitor general laid out a position that could result in the Wild West of labeling and endless litigation. The American people deserve clear labeling that is supported by the science. The Environmental Protection Agency (EPA) has reviewed the labels and signed off. To allow states to require additional (including potentially inconsistent and misleading) labeling runs afoul of the law.

Federal labeling should preempt state law. The Department of Justice agreed with this just two years ago, but now the solicitor general suggests the opposite approach. This 180-degree shift in position should get the attention of the high court, and I hope the court will review this case. Without review, Americans won’t know what labels to believe.

In response to the solicitor general’s misguided recommendation, a large cross-section of agriculture groups laid out strong arguments for the court to take up the case and consider the impact on society if the lower court decision is not reviewed.

As someone who has closely followed these issues, including the debate on the science, I am deeply disappointed to see the government’s latest position. It was also surprising to learn, as Agriculture Secretary Tom Vilsack recently testified, that the USDA was not consulted before the solicitor general flipped the government’s long-held position.

The American people need to be able to rely on sound science and should have the facts. They should be able to know whether they will be harmed and be able to rely on clear, consistent labeling. The EPA (which was under my jurisdiction as chairman of the Science Committee) engaged in a decades-long review to inform the label. Additional (often conflicting) state labeling requirements will muddy the waters and harm consumers.

The federal law that governs the labeling of pesticides is there to make sure once the EPA has done its review, the American people will know what is safe and what is not. The government appears to be split in its interpretation of whether state attempts at forcing additional, often inconsistent and misleading, labels are preempted by the federal law. This is a case where the Supreme Court should reject the solicitor general’s recommendation and step in to clarify.

Ironically, while the solicitor general uses its faulty and seemingly politically motivated position on pre-emption to argue the Supreme Court should not hear this case, the fact that the government has changed its position is all the more reason it is critical the Supreme Court review this case. Despite the solicitor general’s position, Americans deserve clarity and certainty. The Supreme Court can and should provide that in this case.

Former Rep. Lamar Smith (R-Texas) served for 32 years in Congress as the representative for the 21st Congressional District of Texas. He most recently served as chairman of the Science, Space, and Technology Committee. Earlier in his tenure, he served on as chairman of the Judiciary Committee and the Ethics Committee, which makes him the only recent member in the House of Representatives to have chaired three committees. He is currently a senior consultant at Akin Gump Strauss Hauer & Feld. While these opinions are his own, his firm Akin Gump is registered to lobby for Bayer, which is one of the parties to the litigation.