Amicus Curiae Brief — American Cyanamid Co. v. Geye

MOTION FILED

ory 4 9902

” = No. 02-367

Sn the Supreme Court of the Anited States

AMERICAN CYANAMID COMPANY,

Petitioner.

V.

TERRY GEYE AND BRANDON GEYE,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of Texas

MOTION OF CROPLIFE AMERICA FOR LEAVE

TO FILE BRIEF AS AMICUS CURIAE AND

BRIEF IN SUPPORT OF PETITIONER

DOUGLAS T. NELSON ALAN E. UNTEREINER*

Senior Vice President Robbins, Russell, Englert,

and General Counsel Orseck & Untereiner LLP

CropLife America 1801 K Street, N.W.

1156 15th Street, N.W. Suite 41]

Suite 400 Washington, D.C. 20006

Washington, D.C. 20005 (202) 775-4500

(202) 872-3880

* Counsel of Record

MOTION FOR LEAVE TO FILE BRIEF

AS AMICUS CURIAE

Pursuant to Rule 37.2 of the Rules of this Court, CropLife

America moves for leave to file the accompanying brief as

amicus curiae in support of the petition for a writ of certiorari.

Counsel for petitioner has consented to the filing of this brief,

but counsel for the respondents has withheld consent.

CropLife America is a national, not-for-profit trade associa-

tion that promotes the environmentally sound use of crop pro-

tection products (including herbicides, insecticides, fungicides,

and other types of pesticides) for the economical production of

safe, high quality, and abundant food, fiber, and other crops.

Established in 1933, CropLife America (formerly known as the

American Crop Protection Association and, before that, as the

National Agricultural Chemicals Association) represents the

developers, manufacturers, formulators, and distributors of plant

science solutions for agricultural and pest management in the

United States. The association’s members produce, sell, and

distribute virtually all of the crop protection and biotechnology

products used by American farmers.

CropLife America often participates as amicus curiae in

cases that raise issues of vital concern to its membership. This

is such a case. CropLife America’s members have a substantial

interest in ensuring that questions concerning the preemptive

effect of the Federal Insecticide, Fungicide, and Rodenticide Act

(“FIFRA”), 7 U.S.C. § 136-136y, are properly resolved. For

that reason, CropLife America filed an amicus brief in this case

when it was before the Texas Supreme Court, and has filed

amicus briefs in other FIFRA preemption cases as well. See,

e.g., Wisconsin Public Intervenor v. Mortier, 501 U.S. 597

(1991); Hart v. Bayer, 199 F.3d 239 (5th Cir. 2000); Etcheverry

v. Tri-Ag Servs., Inc., 993 P.2d 366 (Cal. 2000). CropLife

America has also submitted amicus briefs in cases in this Court

that raised other issues of importance to its members. See, é.g.,

J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc.,

534 U.S. 124 (2001); Whitman v. American Trucking Ass’ns,

Inc., 531 U.S. 457 (2001).

CropLife America’s motion for leave to file the

accompanying brief as amicus curiae should be granted.

Respectfully submitted.

DOUGLAS T. NELSON ALAN E. UNTEREINER*

Senior Vice President Robbins, Russell, Englert,

and General Counsel Orseck & Untereiner LLP

CropLife America 1801 K Street, N.W.

1156 15th Street, N.W. Suite 41]

Suite 400 Washington, D.C. 20006

Washington, D.C. 20005 (202) 775-4500

(202) 872-3880

OCTOBER 2002 : * Counsel of Record

2

TABLE OF CONTENTS

Page

pee ey 6 ey | 1]

INTEREST OF THE AMICUS CURIAE ............... l

ES ]

I. THIS COURT HAS JURISDICTION TO REVIEW

THE TEXAS SUPREME COURT’S DECISION ..... 2

II. THE CONFLICT IN THE LOWER COURTS IS

SERIOUS AND WARRANTS THIS COURT’S

IE ee en 8

III. THE DECISION BELOW IS WRONG AND, IF LEFT

UNCORRECTED, COULD SPAWN ADDITIONAL

UNCERTAINTY AND WASTEFUL LITIGATION

OVER THE SCOPE OF FIFRA PREEMPTION .... 13

eG dw 4 a ois dass dew ods 60 0's 19

(1)

ll

TABLE OF AUTHORITIES

Page(s)

Cases:

Andrus v. AgrEvo USA Co., 178 F.3d 395 (1999) ..... 9,11

Baldwin v. Alabama, 472 U.S. 372 (1985) ............ 1]

Belknap v. Hale, 463 U.S. 491 (1983) ...............0.. 6

Brown v. Chas. H. Lilly Co.,

985 P.2d 846 (Or. Ct. App. 1999),

rev. denied, 6 P.3d 1098 (Or. 2000)............... 12

California v. Rooney, 483 U.S. 307 (1987) ............. 7

City of Columbus v. Ours Garage and Wrecker

oervece, mC., 122 S. Ct. ZEZO CAE) oo oe ce cc ewe eee 15

Cox Broadcasting Corp. v. Cohn,

eT a TE ck ae aceeu ek ae dawsaeses passim

Etcheverry v. Tri-Ag Servs., Inc., 993 P.2d 366

SE BREE a aes coke eee e eo es ee os 8,9, 15

Eyl v. Ciba-Geigy Corp., 650 N.W.2d 744

SE Sal Peake head Cv Mae ks pee Maa eee 12

Geier v. American Honda Co.,

a as 5 kin sien eee on oe ee een es 16

Goodyear Atomic Corp. v. Miller,

ee ee Ee Se Ns ack sch ascackeaeesenuws 5, 6

Gorton v. American Cyanamid Co.,

552 I. W 28 TAG CWI. 1995) «ow cc ec eee 11,12

Hagen v. Utah, 510 U.S. 399 (1994) ................. 1]

TT eT

ill

TABLE OF AUTHORITIES — Continued

Page(s)

Ingersoll-Rand Co. v. McLendon,

ee I ee I 6 oes oa ee knee eee 6

Kuiper v. American Cyanamid Co., 131 F.3d 656

Se TD bee nena wn even chee a eee 12

LeBlanc v. State, 826 S.W.2d 640 (Tex. App. —

Houston [14th Dist.] 1992) ..............00..002.. 8

Local No. 438 Construction and General Laborers

Union v. Curry, 371 U.S. $42 (1963) .............. 6

Mathews v. Eldridge, 424 U.S. 319 (1976) ........... Oe

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) .. 2.2.0... 12

Mercantile National Bank v. Langdeau,

FES A BEE Ax Bika Ee a ee ee 8

Mississippi Power & Light Co. v. Mississippi,

DT Sas SOO LEONE 6 ed Kee eee ee ena eee ees 4,5

Netland v. Hess & Clark, 284 F.3d 895

(8th Cir. 2002), pet. for cert. filed, 71 U.S.L.W.

RS Pe rer rere er eee 12

Puerto Rico Dept. of Consumer Affairs v.

Isla Petroleum Corp., 485 U.S. 495 (1988) ...... 17, 18

Sleath v. West Mont Home Health Services,

16 P.3d 1042 (Mont. 2000), cert. denied,

Re a Se ED xb os cae ve kane ee eae 4,12

Southland Corp. v. Keating, 465 U.S. 1 (1984) .......... 6

iV

TABLE OF AUTHORITIES — Continued

Page(s)

Taylor AG Industries v. Pure-Gro, 54 F.3d 555

os hc VR ARE RTS eee RRO 12

United States Healthcare Systems of Pa. v.

Pennsylvania Hosp. Ins. Co.,

ER OOOED pbc e es es teees vee peer ebnnes 6

United States Healthcare Systems of Pa. v.

Pennsylvania Hosp. Ins. Co.,

Cee Ce 6 56 oa ce th él vslese eed ee meets 6

Wisconsin Public Intervenor v. Mortier,

ET CEPED so iso v acc ekeee sr veeaseee’ 7

Worm v. American Cyanamid Co.,

fo) gk EC lm Be |} nr ne 17

Yee v. City of Escondido, 503 U.S. 519 (1992) ......... 1]

Statutes and Regulation:

OED 65 ccs p cen sevecesieveeseers 18

Ph Se POMS occ ceseveoveereneeneveshens 18

i EE Ses Vib ccoceeerseseeeedwe tues 14

PEM EPUEMENE) cic iscccvccevevevesecsenee 18

gc kono by ¥9 64.9950 Ne eRe 15

OD 6 vc ceo Skee seevseesvasevevoes passim

SP RMON S Dns ec ccsscecsvacceerenvanses 16

Vv

TABLE OF AUTHORITIES — Continued

Page(s)

ee Sr OEE SAS o cbs) kn chewspeeavedabeaeees 17

Ae OF SD 65-6 4:5 00s ho saws ad 00 ee 15

oe SR SUE > 565 o kc bau ilee bas ebe Oewekeeeee 16

Le aes PUNE a cbc ak ores one cok bares eeao ee Pee

ie aes PEPE sweet eceus bade eos 15

bak ee S| Pee er Pree rrr ers ae 16

Re OR ee ee Tee ry ee ren ee 16

SF ME OTE 5A 0 00b45 he biden nuee eco 15

re th ee | Pere eee er eee ror 16

ee i ORES nor or et ee NS his ee eh ers seke ae

Be Re CEE osha ede vader eedes anne ater 6

ey 9 ha aS Coe bd oko dos ks eae eee es 16

RE S55 oko nooo ek yond ooh edewnes<ss 15, 16

49 US.C. § 14501(c)(2)(A) .. 2. eee ee 15

We Sa EE 6 Ge ks 2s peeks co babu res cee sawed 15

Oe re PD 66 su coh cee ke s% peuecaeeunns 16, 17

Oe ae ED 6-6 oo'2 6 54 o0 oN oRaseteaewewee’ 16

40 C.F.R. § 156.10 (2001) . 0... eee c cece cee ee. 17

Vi

TABLE OF AUTHORITIES — Continued

Page(s)

Miscellaneous:

ECONOMIC RESEARCH SERVICE, U.S. DEPT. OF

AGRICULTURE, AGRICULTURAL INCOME AND

FINANCE OUTLOOK (Sept. 25, 2001) ............... 9

of HE . 7g) aa are passim

R. STERN, E. GRESSMAN, S. SHAPIRO & K. GELLER,

SUPREME COURT PRACTICE 145 (8th ed. 2002) ..... 3,9

Texas Environmental Profile <available at

http.//www.texasep.org/html/pes/pes 2tex.html> .... 10

2 U.S. DEPT. OF AGRICULTURE, 1997 CENSUS OF

Fs SAGE RRR ARP ree eh Way eg aparece 9.10

U.S. DEPT. OF AGRICULTURE, ANNUAL REPORT 2001:

INTERREGIONAL RESEARCH PROJECT NO. 4,

A NATIONAL AGRICULTURAL PROGRAM TO

CLEAR CROP PROTECTION CHEMICALS AND

BIOLOGICAL PEST CONTROL AGENTS FOR

a oe tee ca ake 13

BRIEF FOR CROPLIFE AMERICA AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

INTEREST OF THE AMICUS CURIAE'

The interest of the amicus curiae is described in the

accompanying motion for leave to file this brief.

ARGUMENT

In enacting the Federal Insecticide, Fungicide, and

Rodenticide Act (“FIFRA”), 7 U.S.C. § 136-136y, Congress

vested the United States Environmental Protection Agency

(“EPA”) with broad and exclusive authority to regulate the

labeling and packaging of pesticides sold in this country. See

Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 615

(1991) (explaining that labeling “fall[s] within an area that

FIFRA’s ‘program’ pre-empts”). Toward that end, Congress

included in FIFRA a broad preemption clause — aptly titled

“uniformity” — that expressly bars the States from imposing on

federally registered pesticides “any requirements for labeling or

packaging” that are either “in addition to or different from those

required under this subchapter.” 7 U.S.C. § 136v(b) (emphasis

added). Congress intended Section 136v(b) “to completely

preempt state authority in regard to labeling and packaging.”

H.R. Rep. No. 92-511, at 16 (1971) (emphasis added).

In the decision below, the Texas Supreme Court has parted

ways with the Supreme Court of California and several federal

circuits in resolving an issue of surpassing importance to the

manufacturers and distributors of pesticides, to farmers, and

ultimately to the consumers of agricultural products: Does

FIFRA preempt labeling-related damages claims for crop injury

' Pursuant to Rule 37.6 of the Rules of this Court, CropLife America

states that no counsel for a party has written this brief in whole or in

part and that no person or entity, other than amicus curiae, its

members, or its counsel, has made a monetary contribution to the

preparation or submission of this brief.

2

that are brought under state law? In holding categorically that

such claims are not preempted, the Texas Supreme Court has

created a serious conflict over the meaning of an important

federal statute and impaired the national uniformity of pesticide

labeling mandated by Congress. That alone merits this Court’s

review.

But there is more. In reaching this anomalous result, the

Texas Supreme Court purported to find an “exception” (Pet.

App. 1a) to FIFRA’s clear preemptive command, relying on the

ground that the expert federal agency charged with regulating

pesticide labeling — the EPA — supposedly had chosen not to

regulate a particular aspect of the product labeling challenged

by respondents’ claims. As we explain below, Congress did not

create any such “exception” to FIFRA’s preemption provision;

nor did it authorize the EPA to grant “exemptions” from

preemption. Unlike other preemption schemes that have those

features, FIFRA is unqualified in its preemption of state-

imposed “requirements” for the labeling or packaging of

federally registered pesticides. By concluding otherwise based

on an inquiry into whether the EPA, at the time of initial

product approval, examined data relating to specific product

risks, the Texas Supreme Court’s decision threatens to interject

uncertainty into this important area of federal law as well as

invite further, wholly unnecessary litigation. For that reason as

well, this Court should grant the petition in this case.

Before examining these reasons in greater detail, however,

we first explain why this Court has jurisdiction even though the

Texas Supreme Court’s decision remanded the case for further

proceedings in the state courts.

I. THIS COURT HAS JURISDICTION TO REVIEW

THE TEXAS SUPREME COURT’S DECISION

This Court’s certiorari jurisdiction over decisions of the

state courts is conferred by 28 U.S.C. § 1257, which authorizes

review of any “[f]inal judgment[] or decree[] rendered by the

highest court of a State in which a decision could be had.” The

3

Court has long eschewed a “mechanical” interpretation of the

requirement of “finality.” Cox Broadcasting Corp. v. Cohn,

420 U.S. 469, 477 (1975). Instead, the Court has applied an “‘in-

tensely practical approach” to determining “finality.” Mathews

v. Eldridge, 424 U.S. 319, 331 n.11 (1976); see also Cox Broad-

casting, 420 U.S. at 478 & n.7 (“[T]he requirement of finality

is to be given a practical rather than a technical construction.”)

(internal quotations omitted). See generally R. STERN,

E. GRESSMAN, S. SHAPIRO & K. GELLER, SUPREME COURT

PRACTICE 145, 152-154 (8th ed. 2002) (“STERN & GRESSMAN”’).

In Cox Broadcasting, this Court took note of “at least four

categories of * * * cases” in which, for practical reasons, it has

elected to treat decisions of the state courts as “final” even

though “there [we]re further proceedings in the lower state

courts to come.” 420 U.S. at 477. As petitioner correctly points

out (Pet. 1-3), this case falls squarely within the fourth category

recognized in Cox Broadcasting. That category consists of

cases in which (1) “the federal issue has been finally deci’ ed in

the state courts with further proceedings pending in which the

party seeking review here might prevail on the merits on

nonfederal grounds, thus rendering unnecessary review of the

federal issue by this Court”; (2) “reversal of the state court on

the federal issue would be preclusive of any further litigation on

the relevant cause of action rather than merely controlling the

nature and character of, or determining the admissibility of

evidence in, the state proceedings still to come”; and (3) “a

refusal immediately to review the state court decision might

seriously erode federal policy.” 420 U.S. at 482-483.

Each of those conditions is satisfied here. First, the FIFRA

preemption issue was fully considered — and squarely resolved

— in the decision below by the highest court of Texas. And, if

review is denied, it is at least possible that petitioner eventually

will prevail on the merits at trial on nonfederal grounds.

Second, if this Court were to grant review and reverse the

Texas Supreme Court by holding that FIFRA preempts

respondent’s labeling-related claims under state law for

4

agricultural crop injury, that action would bring this litigation to

an end. As American Cyanamid correctly points out (see Pet.

3, 6, 8), both the trial and the intermediate appellate court in

Texas ruled that al/ of respondents’ claims are labeling-related

and the Texas Supreme Court in no way disturbed or questioned

that finding. See also Pet. App. 16a, 24a, 28a.’

Third, the federal policy underlying FIFRA and _ its

preemption clause would be seriously undermined if this Court

declines to exercise immediate review. As its title suggests,

FIFRA’s express preemption clause is aimed at ensuring

nationwide “uniformity” in the labeling and packaging

requirements applicable to federally registered pesticides. See

7 U.S.C. § 136v(b). The decision below destroys that

uniformity by allowing state juries in Texas — one of the leading

agricultural States in the nation — to impose additional or

different labeling requirements on manufacturers in private

lawsuits.

In similar circumstances, this Court has repeatedly applied

Cox Broadcasting to grant immediate review. For example, in

Mississippi Power & Light Co. v. Mississippi, 487 U.S. 354

(1988), the Court considered whether a decision of the Federal

Energy Regulatory Commission allocating the cost of construct-

ing a nuclear plant among four utility companies preempted a

state regulator from examining the prudence of constructing the

plant. /d. at 356. The state supreme court had ruled that a pru-

’ This feature of the litigation below distinguishes it from other FIFRA

preemption decisions rendered by state courts that this Court, in its

discretion, has elected not to review. For example, in Sleath v. West

Mont Home Health Services, 16 P.3d 1042 (Mont. 2000), cert. denied,

122 S. Ct. 40 (2001), the respondent maintained that a reversal on the

preemption issue would not terminate the entire lawsuit. See No. 00-

1674 Br. in Opp. 6-7. Sleath is also distinguishable, of course,

because it did not raise the same issues presented here. Compare No.

00-1674 Pet. i with No. 02-367 Pet. i, 13 & n.3.

5

dence inquiry by state regulators was not preempted and had re-

manded the case to state regulators to conduct such an inquiry.

See id. at 368. Despite the pendency of those state proceedings,

this Court held that the state supreme court’s decision was

“final” under Cox Broadcasting: “The critical federal question

— whether federal law pre-empts such [state regulatory] proceed-

ings while the FERC order remains in effect — has * * * already

been answered by the State Supreme Court and its judgment is

therefore ripe for review.” Jd. at 370 n.11.

Similarly, in Goodyear Atomic Corp. v. Miller, 486 U.S.

174 (1988), the Court granted certiorari to decide whether the

State of Ohio had violated the Supremacy Clause by subjecting

a private contractor operating a federally owned nuclear produc-

tion facility to a state workers’ compensation law giving em-

ployees higher awards for injuries resulting from a violation of

state safety standards. /d. at 176. The Ohio Supreme Court had

held that federal law did not preempt Ohio from applying state

safety requirements unrelated to radiation hazards to nuclear

facilities; accordingly, the state industrial commission was or-

dered, on remand, to consider the merits of the employee’s

claim. See id. at 177-178. Despite the pendency of these state

proceedings, immediate review was granted because the case

fell within the “fourth category” recognized in Cox Broadcast-

ing. Id. at 179. As the Court emphasized, leaving the Ohio

Supreme Court’s decision unreviewed would have threatened to

undermine vital federal policies. Jbid. The state court decision

“sanction[ed] direct state regulation” of the nuclear facility in-

volved in the case and had “important implications for the reg-

ulation of federally owned nuclear production facilities in other

States.” Id. at 179-180.

* The Court’s statements about the importance of the federal interest

implicated appear in the same opinion in which the Court rejected the

argument for preemption and affirmed the state supreme court’s

judgment. By simultaneously recognizing for jurisdictional purposes

the importance of the federal interests involved, and deciding that

those federal interests would not prevail in the preemption analysis on

6

Mississippi Power & Light and Goodyear Atomic are just

two examples of a long line of cases granting immediate review

of state court preemption decisions despite pending state

proceedings. In Southland Corp. v. Keating, 465 U.S. 1 (1984),

this Court applied Cox Broadcasting to review a state-court

decision that the Federal Arbitration Act did not preempt state

law claims under the California Franchise Investment Law; al-

though such claims had not yet been tried on the merits, the

Court recognized the state court’s decision as “final.” Jd. at 6-7.

In Belknap v. Hale, 463 U.S. 491, 497 n.5 (1983), and Local

No. 438 Construction & General Laborers Union v. Curry, 371

U.S. 542, 548-551 (1963), this Court reviewed state-court deci-

sions regarding the preemptive scope of the National Labor Re-

lations Act even though hoth state-court decisions contemplated

further proceedings below.

In several cases, this Court has also exercised jurisdiction

over state-court decisions that rejected preemption arguments

under the Employee Retirement Income Security Act of 1974

(“ERISA”), 29 U.S.C. § 1144(a). See, e.g., Ingersoll-Rand Co.

v. McLendon, 498 U.S. 133 (1990) (reviewing decision of Texas

Supreme Court that had held that ERISA does not preempt state

wrongful-discharge claims and had remanded for trial); United

States Healthcare Systems of Pa. v. Pennsylvania Hosp. Ins.

Co., 530 U.S. 1241 (2000) (order) (granting, vacating, and

remanding state court decision in similar posture). In United

States Healthcare, this Court invited the Solicitor General to file

an amicus brief at the petition stage. See 528 U.S. 804 (1999).

In his brief, the Solicitor General agreed with petitioner that this

Court had jurisdiction under 28 U.S.C. § 1257 to review the

Pennsylvania Supreme Court’s decision rejecting ERISA pre-

emption even though there were further proceedings to come in

the state courts. See No. 98-1836 U.S. Br. 7 n.4 (arguing that

the merits, the Court in Goodyear Atomic demonstrated that the Cox

Broadcasting inquiry does not require an evaluation of the merits. It

is enough that important federal interests are implicated.

7

“this case meets the * * * requirements for immediate review

under Cox Broadcasting’) <available at http://www.usdo}.gov/

osg/briefs/1999/2pet/6invit/98-1836.pet.ami.inv.html>.

As with each of these preemption cases, the decision below

fits comfortably within the fourth Cox Broadcasting category.

The Texas Supreme Court’s decision is certainly no less

damaging or destructive to federal policy than were the other

state preemption decisions this Court has treated as final and

reviewed under Cox Broadcasting. As the Solicitor General

told this Court in Wisconsin Public Intervenor v. Mortier, 501

U.S. 597 (1991),

[A]n exclusive federal approach is necessary in certain

areas of pesticide regulation. One such area is labeling.

Due to the burden on commerce that would be imposed by

different labeling requirements in States and localities

across the country, Congress clearly preempted all but

federal regulation of labels.

No. 89-1905 U.S. Br. 22 (emphasis added). Accord H.R. Rep.

No. 92-511, at 16 (1971) (Congress “intended to completely

preempt state authority in regard to labeling and packaging’”’).

Finally, under the Court’s “intensely practical approach” to

finality issues (Mathews, 424 U.S. at 331 n.11), the decision

below is in every practical sense the final word of Texas’s

highest court. This is not a case in which the highest court of a

State has declined to entertain a discretionary interlocutory

appeal, leaving in place the decision of an intermediate state

appellate court that might be subject to review, and correction,

by the state supreme court in some future appeal. Compare

California v. Rooney, 483 U.S. 307, 314 (1987) (per curiam). In

the decision below, the Texas Supreme Court considered, and

squarely resolved, the preemption issues raised in American

Cyanamid’s petition for certiorari. Any revisitation of those

issues in some. distant return trip of this case to the Texas

Supreme Court would have to await the resolution of the merits

of this case (perhaps following a full trial) as well as overcome

8

the high hurdle presented by the law-of-the-case doctrine. See

LeBlanc v. State, 826 S.W.2d 640, 644 (Tex. App. — Houston

[14th Dist.] 1992) (law-of-the-case doctrine bars relitigation in

all but “exceptional or urgent situations’’).

In the meantime, other manufacturers, formulators, and

distributors of herbicides, insecticides, fungicides, and other

types of pesticides in Texas will remain subject to the erroneous

rule of law adopted in the decision below. Nor is there any

realistic possibility that the Texas Supreme Court will reverse

its decision in this case, which was unanimous. In these circum-

stances, it would “serve[] the policy underlying the requirement

of finality in 28 U.S.C. § 1257 to determine” the preemption

question “now * * * rather than to subject [petitioner] * * * to

long and complex litigation which may all be for naught if con-

sideration of the preliminary question * * * is postponed until

the conclusion of the proceedings.” Mercantile National Bank

v. Langdeau, 371 U.S. 555, 558 (1963).*

Il. THE CONFLICT IN THE LOWER COURTS IS

SERIOUS AND WARRANTS THIS COURT’S

ATTENTION

As the petition for certiorari demonstrates (at 8-14), the

Texas Supreme Court’s decision in this case squarely conflicts

with the California Supreme Court’s decision in Etcheverry v.

Tri-Ag Servs., Inc., 993 P.2d 366 (Cal. 2000), a case the lower

court accurately described as “factually similar.” Pet. App. 12a.

In fact, the Texas Supreme Court candidly “acknowledge[d] that

many jurisdictions” — not just California — “have reached the

opposite result” on the question whether FIFRA preempts

* This Court has often relied on such pragmatic considerations in

assessing “finality” under 28 U.S.C. § 1257. For example, in Lang-

deau this Court exercised review over a decision of the Texas

Supreme Court upholding a trial court’s rejection of a threshold

objection to venue. Thus, there is ample precedent — in both pre-

emption and non-preemption cases — for this Court’s exercise of

jurisdiction in this case.

9

labeling-related claims for crop injury predicated on state law.

Pet. App. 12a & n.45 (emphasis added) (citing as examples the

Fifth Circuit’s opinion in Andrus v. AgrEvo USA Co., 178 F.3d

395 (1999), as well as decisions of the Fourth, Seventh, Eighth,

and Ninth Circuits). Not only did the Texas Supreme Court

flatly disagree with the holdings of Etcheverry, the other federal

cases cited in the opinion below, and scores of other state and

federal authorities that have upheld preemption in this setting

(see Pet. 12), but also it squarely rejected the rationale

underlying the California Supreme Court’s decision. See Pet.

App. 12a (criticizing Etcheverry for failing to “draw the

essential distinction between phytotoxicity and target area

phytotoxicity”’).

The conflict in the lower courts is thus clear (and was ex-

pressly acknowledged by the Texas Supreme Court in this case).

This Court has often granted review to resolve conflicting re-

sults reached by the highest courts of two or more States over

the meaning of a federal statute. See STERN & GRESSMAN, su-

pra, at 240, 272 (citing numerous cases). At least three features

of the conflict created by the decision below, moreover, make

it especially deserving of this Court’s attention at this time.

First, as American Cyanamid correctly notes (Pet. 8-9 &

n.1), Texas and California are the two largest States in terms of

agricultural production. At the time of the last full agricultural

survey conducted in 1997, they together accounted for almost

a fifth of the entire agricultural output of the United States. See

2 U.S. DEPT OF AGRICULTURE, 1997 CENSUS OF AGRICULTURE

27 (table 23) (Texas and California combined had production of

$36.8 billion out of the nation’s $196.9 billion) (“1997 CEN-

SUS”). Not surprisingly, California and Texas rank first and

second, respectively, in net farm income. See ECONOMIC RE-

SEARCH SERVICE, U.S. DEPT. OF AGRICULTURE, AGRICULTURAL

INCOME AND FINANCE OUTLOOK 36-37 (tables 1-2) (Sept. 25,

2001). As of 1997, there were approximately 270,000 farms in

Texas and California; and more than 25% of all irmgated

farmland in the United States was located in those two States.

10

See 1997 CENSUS 4 (table 1). In 1995 alone, Texas farmers and

ranchers spent $376 million on pesticides. See Texas

Environmental Profile <available at http://www.texasep.org/

html/pes/pes_2tex.html >.

The importance of the preemption issue presented in this

case is thus not limited to the many developers, manufacturers,

formulators, and distributors of herbicides and other pesticides

who make up CropLife America’s membership. The issue pre-

sented also is vitally important to farmers who depend on these

products and to the national agricultural economy. The Texas

Farm Bureau, on behalf of its “308,526 members” in Texas,

filed an amicus brief in this case in the Texas Supreme Court

urging that crop injury claims be spared from preemption under

FIFRA. See Amicus Curiae Brief (Corrected) of Texas Farm

Bureau in Support of Plaintiffs/Appellees, American Cyanamid

Co. v. Geye, No. 01-1008 (Tex.), at iv. (The California Farm

Bureau Federation counts “95,000 * * * families” among its

members. See <http://www.cfbf.com/about/default.htm>.)

Other groups have also participated in cases raising the FIFRA

preemption issue involved here. See Amicus Brief of California

Rural Legal Assistance, Inc., Etcheverry v. Tri-Ag Service, Inc.,

No. S072524 (Cal.), at 1 (expressing concern about impact of

FIFRA preemption issue on farm workers).

There is simply no good reason why federal law should be

understood to preempt labeling-related crop injury claims

brought in the California courts but leave untouched similar

claims brought in the Texas courts. Federal statutes should have

the same meaning everywhere in the country, and should not

vary depending on geographical happenstance. And it is

difficult to believe that the same Congress that placed such a

premium on national uniformity in pesticide labeling and

packaging would view as tolerable the nonuniform scheme that

now exists, under which the duties of pesticide manufacturers

and the rights of pesticide users hinge on random geographical

variables. To resolve the clear disagreement between the

highest courts of the two largest agricultural States over this

|

1]

important question of federal law, review by this Court is

needed.

Second, the decision below also squarely conflicts with the

Fifth Circuit’s decision in Andrus. When a decision of the high-

est court of a State conflicts with a decision of the federal circuit

in which that State is located, this Court has often granted

review. See, e.g., Hagen v. Utah, 510 U.S. 399, 409 (1994)

(conflict between Utah Supreme Court and Tenth Circuit); Yee

v. City of Escondido, 503 U.S. 519, 538 (1992) (conflict be-

tween Ninth Circuit and California state courts); Baldwin v.

Alabama, 472 U.S. 372, 374 (1985) (describing conflict be-

tween Alabama Supreme Court and Eleventh Circuit as “signif-

icant”).° Because conflicts of this kind give rise to a serious risk

of forum-shopping, they are especially deserving of this Court’s

attention. Yee, 503 U.S. at 538. The risk of forum-shopping in

crop-damages cases is very real, since plaintiffs usually can

defeat removal based cn diversity through the simple expedient

of naming an in-state distributor or retailer as a co-defendant.

And, of course, the potential for forum-shopping is greatly

accentuated where a state justice system has a reputation for

producing windfall verdicts against out-of-state corporate

defendants.

Third, Texas and the Fifth Circuit unfortunately are not the

only pairing of state and federal courts within the same Jjuris-

diction that treat crop injury claims differently under FIFRA’s

preemption clause. The same can be said for the state and fed-

eral courts in another important farm State: Wisconsin. Com-

pare Gorton v. American Cyanamid Co., 533 N.W.2d 746, 753-

56 (Wis. 1995) (holding that negligent misrepresentation claim

under Wisconsin law in crop injury case was not preempted by

* Currently on the Court’s docket are Ewing v. California, No. 01-

6978, and Lockyer v. Andrade, No. 01-1127, both scheduled for

argument November 5, 2002, in which the Court will review

conflicting decisions of the Ninth Circuit and the California Court of

Appeal, Second District.

12

FIFRA), cert. denied, 516 U.S. 1067 (1996) with Kuiper v.

American Cyanamid Co., 131 F.3d 656, 661 (7th Cir. 1997)

(declining to apply rule of Gorton in part because that case

“conflicts with other FIFRA preemption cases” and holding that

FIFRA preempts misrepresentation claims based on off-label

communications), cert. denied, 523 U.S. 1137 (1998).

Moreover, at least two state appellate courts have

concluded — contrary to a vast body of federal and state case law

reaching the opposite conclusion — that FIFRA does not preempt

any common law claims. See Sleath v. West Mont Home Health

Services, 16 P.3d 1042 (Mont. 2000), cert. denied, 122 S. Ct. 40

(2001); Brown v. Chas. H. Lilly Co., 985 P.2d 846 (Or. Ct. App.

1999), rev. denied, 6 P.3d 1098 (Or. 2000). These decisions are

patently incorrect, rest on a fundamental misreading of this

Court’s decision in Medtronic, Inc. v. Lohr, 518 U.S. 470

(1996), and have been harshly criticized. See, e.g., Eyl v. Ciba-

Geigy Corp., 650 N.W.2d 744, 753-754 (Neb. 2002); Netland

v. Hess & Clark, 284 F.3d 895, 899 & n.4 (8th Cir. 2002), pet.

for cert. filed, 71 U.S.L.W. 3138 (Aug. 9, 2002) (No. 02-219).°

Nevertheless, they do have the practical effect of ensuring that

labeling-related claims for crop injuries are not preempted in

cases filed in the Montana and Oregon state courts. In sharp

contrast, such claims are preempted by FIFRA in the federal

courts in those two States. See Taylor AG Industries v. Pure-

Gro, 54 F.3d 555 (9th Cir. 1995).

° For several reasons, this case is a better vehicle for clarifying the

scope of FIFRA preemption than is Netland. To begin with, as

American Cyanamid points out (Pet. 13 n.3), the petition in Netland

raises a different issue on which there is virtual unanimity in the lower

courts. In addition, if this Court were to grant review in Netland and

affirm (a result consistent with the great weight of authority in the

lower courts), that would leave unresolved the serious conflict in the

lower courts over the treatment of crop-injury claims that is raised in

this case. Finally, Netland presents an unusual fact pattern (because

it involves clear misuse of the product).

13

In light of these serious discrepancies in the treatment of

crop injury litigation, review by this Court is needed to bring

uniformity to the important questions of federal law presented

in American Cyanamid’s petition. If left uncorrected, the Texas

Supreme Court’s decision will subvert Congress’s judgment —

expressed in FIFRA’s preemption clause — that labeling for crop

protection pesticides should be nationally uniform. Such

uniformity ensures that farmers in every State receive the same

information, based on labeling that has been approved by an

expert federal regulator (rather than by judges or lay juries in

the States). It also allows manufacturers to distribute a single

product in the national market for a particular crop rather than

incurring the unwarranted expense (which would be passed on

at least in part to pesticide users in the form of higher prices) of

designing different labels for each of the 50 States. And, of

course, the protection provided to manufacturers by FIFRA’s

preemption clause serves the longstanding federal policy of

ensuring that pesticides remain available to farmers and other

consumers even for smaller-volume crops (including in States

marred by a proven track record of runaway jury verdicts).’

III. THE DECISION BELOW IS WRONG AND, IF LEFT

UNCORRECTED, COULD SPAWN ADDITIONAL

UNCERTAINTY AND WASTEFUL LITIGATION

OVER THE SCOPE OF FIFRA PREEMPTION

In holding that respondents’ claims are not preempted by

FIFRA, the Texas Supreme Court purported to rely on a

“congressionally created exception to [FIFRA’s] express

preemption” of state labeling and packaging requirements. Pet.

App. la (emphasis added); see also id. at 14a. According to the

lower court, Congress “authorized the EPA in 1978 to choose

” See, e.g., U.S. DEPT. OF AGRICULTURE, ANNUAL REPORT 2001:

INTERREGIONAL RESEARCH PROJECT No. 4, A NATIONAL AGRICUL-

TURAL PROGRAM TO CLEAR CROP PROTECTION CHEMICALS AND BIO-

LOGICAL PEST CONTROL AGENTS FOR MINOR USE, at i (discussing

federal policy) .

14

not to require the submission of data” relating to pesticide

“efficacy” (id. at 5a (citing 7 U.S.C. § 136a(c)(5)); the agency,

“acting under this authorization, has chosen not to collect

efficacy data” for most products (including Pursuit and Prowl,

the two pesticides at issue in this case) (ibid.); and EPA has

further “chosen to include ‘target area phytotoxicity’ within the

concept of efficacy” (id. at 5a-6a). Thus, the lower court

reasoned, EPA has “exercised no regulatory authority over” the

portion of American Cyanamid’s label “that specifically

allowed the tank mixing of Pursuit and Prowl.” /d. at 8a.

Because FIFRA expressly preempts state labeling requirements

only “to the extent that the content of the product label is

regulated” by EPA, the court held, there was no preemption of

respondents’ claims. /d. at la; see also id. at 12a-13a, 14a.

That analysis is flawed at every turn. To begin with,

FIFRA’s express preemption provision, 7 U.S.C. § 136v(b),

contains no exceptions. On the contrary, the preemption clause

provides broadly and without qualification that the States “shall

not impose or continue in effect any requirements for labeling

or packaging” that are either “in addition to or different from

those required under this subchapter.” /bid. (emphasis added).

Contrary to the Texas Supreme Court’s suggestion, Congress’s

decision to amend FIFRA in 1978 (six years after the

preemption provision was enacted) by adding language in

Section 136a(c)(5) authorizing the EPA to “waive data

requirements pertaining to efficacy” does not create an

exception to express preemption under Section 136v(b). See

Etcheverry v. Tri-Ag Servs., Inc., 993 P.2d 366, 375-376 (Cal.

2000). In fact, Section 136a(c)(5) says nothing at all about

preemption; it concerns instead which pesticides may be

“register[ed]” by EPA. Nor is there evidence that Congress

intended, in amending FIFRA by adding the pertinent language

of Section 136a(c)(5), to create an exception to express preemp-

tion. In short, there is no basis in the text or legislative history

15

——of the statute for the novel exception created by the Texas

Supreme Court.*

Moreover, Congress knows full well how to carve out

exceptions to express preemption commands and has done so in

many other statutes. For example, the express preemption pro-

vision of the Federal Boat Safety Act generally bars States from

“establish{ing], continu[ing] in effect, or enforc[ing]” any “law

or regulation” that either “establish[es] a recreational vessel or

associated equipment performance or other safety standard” or

“impos[es] a requirement for associated equipment,” but it con-

tains an “except[ion]” allowing States to “regulate the carrying

or use of marine safety articles to meet uniquely hazardous con-

ditions or circumstances within the State” in the absence of

“disapproval” by the federal government. 46 U.S.C. § 4306.

Similarly, Congress included in the express preemption provi-

sion of the Flammable Fabrics Act, 15 U.S.C. § 1203(b), an

exception for state flammability standards that “afford a higher

degree of protection” than do the federal standards. Such ex-

ceptions are quite common. E£.g., 15 U.S.C. § 1476(b); id.

§ 6715; 49 U.S.C. § 20106. See also City of Columbus v. Ours

Garage and Wrecker Service, Inc., 122 S.Ct. 2226, 2230 (2002)

(interpreting “exception” to preemption set forth in 49 U.S.C.

§ 14501(c)(2)(A)).

® Section 136v(a) of FIFRA, which immediately precedes the express

preemption clause, does not create an exception to Section 136v(b)’s

preemption of labeling-related state requirements. See 7 U.S.C.

§ 136v(a) (“A State may regulate the sale or use of any federally

registered pesticide * * * in the State, but only if and to the extent the

regulation does not permit any sale or use prohibited by this sub-

chapter.”) (emphasis added). In fact, Congress regarded Section

136v(a) as a “partial{] preempt[ion]” provision in its own right. H.R.

Rep. No. 92-511, at 2 (1971); accord id. at 16 (referring to the

“preemption provisions” of the bill) (emphasis added). Nor did the

Texas Supreme Court rely on Section 136v(a) in its analysis.

16

Equally unfounded was the Texas Supreme Court’s

suggestion that the EPA, by “choos[ing] NOT to regulate

product labeling with respect to how well a product works” —

and, in particular, the labeling’s statements concerning the

product’s “target area phytotoxicity” — had effectively exempted

state labeling requirements dealing with that subject from

FIFRA’s express preemption clause. Pet. App. 1a-2a (emphasis

in original). Here again, Congress did not grant the EPA any

authority to exempt state requirements from preemption.’

Notably, Congress has granted other agencies exemption

authority under other preemption schemes. See, e.g., 15 U.S.C.

§ 1203(c) (granting Consumer Product Safety Commission

(“CPSC”) authority under certain circumstances to exempt state

requirements from preemption under the Flammable Fabrics

Act); id. § 1476(c) (same for CPSC under the Consumer

Product Safety Act); 21 U.S.C. § 360k(b) (same for Food and

Drug Administration under the Medical Device Amendments);

46 U.S.C. §§ 4305, 4306 (same for Coast Guard under the Boat

Safety Act). See also 15 U.S.C. § 2617(b).'°

* In fact, Congress took pains to point out that the subsection

immediately following Section 136v(b) — which authorizes States, in

the absence of EPA disapproval, to register pesticides for “‘additional

uses” in order “to meet special local needs” (15 U.S.C. § 136v(c)(1))

— was not “intended to derogate” the preemption clause or to grant

EPA the power “to delegate to the States authority to set aside the

preemption provisions of [subsection (a)].”” H.R. Rep. No. 92-511, at

16 (1971). Thus, Congress made clear its intent to protect and

preserve the preemptive force of FIFRA even against attempted

encroachments by EPA.

'° Notably, Congress in enacting FIFRA also elected not to include

any provision that might have been interpreted as a “savings” clause

sparing certain state requirements from preemption. Compare, e.g.,

49 U.S.C. § 30103(b), (e) (National Traffic and Motor Vehicle Safety

Act) (discussed in Geier v. American Honda Co., 529 U.S. 861

(2000)).

17

Nor does other language in FIFRA’s express preemption

clause lend support to the notion that “without EPA regulation”

on the same subject matter targeted by a state-law claim “there

can be no preemption.” Pet. App. 13a. Section 136v(b) pre-

empts “any requirements for labeling or packaging” imposed by

the States that are either “different from” or “in addition to

* * * those required under this subchapter.” 7 U.S.C. § 136v(b)

(emphasis added). When EPA leaves some aspect or subject

matter of a registered pesticide’s labeling unregulated, state

labeling requirements that target the aspect or subject matter

plainly are “in addition to” the federal labeling requirements

that do apply to the pesticide. See, e.g., 40 C.F.R. § 156.10

(2001). See generally Worm v. American Cyanamid Co., 970

F.2d 1301, 1308 (4th Cir. 1991) (“We * * * construe the

prohibition against state labeling requirements ‘in addition to’

those in FIFRA to preempt the imposition of categories of

labeling restrictions not provided by the federal law.”).

Moreover, Congress knows full well how to specify that a

federal requirement on the same subject matter must be in

existence before state law is expressly preempted, and has done

so in other preemption provisions (but not in FIFRA). For

example, in the preemption provision of the National Traffic

and Motor Vehicle Safety Act, Congress provided:

When a motor vehicle safety standard is in effect under this

chapter, a State or a political subdivision of a State may

prescribe or continue in effect a standard applicable to the

same aspect of performance of a motor vehicle or motor

vehicle equipment only if the standard is identical to the

standard prescribed under this chapter.

49 U.S.C. § 30103(b) (emphasis added); see also 15 U.S.C.

§ 1203(a) (preempting state law “whenever a [federal] standard

or other regulation * * * is in effect’’); id. § 1476(a) (same). Or

Congress can accomplish the same result by having no express

preemption provision at all or repealing a preexisting preemp-

tion provision. See Puerto Rico Department of Consumer

Affairs v. Isla Petroleum Corp., 485 U.S. 495, 504 (1988)

18

(“repeal of [Emergency Petroleum Allocation Act] regulation

did not leave behind a pre-emptive grin without a statutory

cat”). But FIFRA’s preemption clause does not require that a

federal requirement be in effect, and the clause has not been

repealed. In fact, Congress has repeatedly amended FIFRA but

has left unchanged the language of Section 136v(b), even after

that provision was widely interpreted as preempting state

requirements imposed through the common law (including in

crop injury cases such as this).

The Texas Supreme Court had no authority — in conflict

with the Fourth Circuit’s decision in Worm —to rewrite FIFRA’s

broad preemption provision to have the same effect as a clause

with radically different wording or a repealed clause.'' For all

of these reasons (as well as others discussed by American

Cyanamid, see Pet. 16-21), the Texas Supreme Court was wrong

to conclude that a state labeling requirement is not subject to

preemption under Section 136v(b) unless and until the EPA has

“regulate[d the] * * * product’s labeling on that subject.” Pet.

App. 14a (emphasis added). The Texas Supreme Court’s faulty

reasoning makes this case particularly worthy of this Court’s

review.

In addition, if left uncorrected, the lower court’s analysis

could generate substantial litigation in Texas if not in other

States. The reason is straightforward: whether a federal require-

'' Even if Section 136v(b) could be read as requiring that some federal

labeling requirement be in existence before preemption is triggered,

it would not support the Texas Supreme Court’s apparent view that

the EPA must regulate the labeling before preemption is triggered. |

Pet. App. 13a. By its plain terms, Section 136v(b) refers to any

federal requirements that might be “required under this subchapter.”

7 U.S.C. § 136v(b) (emphasis added). That, of course, includes

requirements imposed directly on the labeling by FIFRA itself

(without any regulatory action by the EPA). See, e.g., id. §§

136(q)(1)(F)-(G), 136j(a)(1)(E) (regulating pesticide labeling by

requiring that pesticides not be misbranded).

19

ment regulates the same “subject matter” in pesticide labeling

is obviously open to debate. Thus, it is foreseeable that litigants

in Texas will attempt further to erode FIFRA’s preemption

clause by arguing — even in failure-to-warn cases involving

personal injury rather than agricultural crop-damage claims -—

that there is no federal labeling requirement that in fact covers

the same “subject matter.” The Court should act now to prevent

further evisceration of Congress’s directive that pesticide

labeling should be nationally uniform.

CONCLUSION

For the foregoing reasons and those stated in the petition,

the petition for a writ of certiorari should be granted.

Respectfully submitted.

DOUGLAS T. NELSON ALAN E. UNTEREINER*

Senior Vice President Robbins, Russell, Englert,

and General Counsel Orseck & Untereiner LLP

CropLife America 1801 K Street, N.W.

1156 15th Street, N.W. Suite 411

Suite 400 Washington, D.C. 20006 .

Washington, D.C. 20005 (202) 775-4500

(202) 872-3880

OCTOBER 2002 * Counsel of Record