# Amicus Curiae Brief — American Cyanamid Co. v. Geye

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0371%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 1017

## Text

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 .... 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’) .

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 .

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 .)
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0371%3A03. Public record. Not legal advice.