Document Type



Duke Environmental Law & Policy Forum




In the upcoming Term, the Supreme Court will consider a case raising the question whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts state tort law, or only state positive law. FIFRA, under which the Environmental Protection Agency regulates pesticide labels, has an express preemption clause and clearly preempts state positive law on labeling. The question presented is whether and to what extent it also preempts state tort law, particularly claims for failure to warn. The Court's precedent on preemption of state tort law is erratic, but for some reason, the pro-preemption view has been much more popular with lower courts. The view that FIFRA broadly preempted state tort law was unanimous for several years, until the EPA filed an amicus brief in a California case arguing against preemption. That brief was rejected in most courts but accepted in Montana and Oregon. Under President Bush, however, the EPA reversed its preemption and now argues in favor of preemption - which in practice means near-complete immunity for pesticide manufacturers against claims by consumers or bystanders. This paper argues that the Supreme Court should hold that even though FIFRA preempts states from passing laws about what should be on a pesticide label, FIFRA does not preempt tort claims for failure to warn about the dangers of the pesticide. In doing so, the Court should clarify the operation of various presumptions it is adopted for when to find state law preempted by a federal statute.