The Legal Battle Against Roundup and Other Biocides
See Original Article at Bioneers
In a recent historic legal settlement Bayer has agreed to pay $10 billion to settle thousands of claims that their herbicide Roundup causes cancer. Andrew Kimbrell is a public attorney, author, and founder of the Center for Food Safety (CFS). CFS has made successful legal challenges against some of the world’s most flagrant polluter’s like Monsanto and Dow Chemical, as well as their enabler the EPA while advocating for an organic, regenerative food system. Andrew Kimbrell was interviewed by Arty Mangan, Bioneers Restorative Food Systems Director.
ARTY: Carey Gillam described Roundup in her book Whitewash: The Story of a Weed Killer, Cancer, and the Corruption of Science, by saying, “It’s the pesticide on our dinner plates, a chemical so pervasive it’s in the air we breathe, our water, our soil, and even increasingly found in our own bodies.”
ANDY: Rachel Carson in Silent Spring reminds us that pesticide is a misnomer. We really shouldn’t use that term because it infers that these toxic chemicals just kill pests. But in fact, they are biocides; they kill everything. They may kill weeds, but they also kill birds and beneficial species, and they can kill people. Whether it is glyphosate [the active ingredient in Roundup] or Dicamba or every other insecticide, fungicide, and herbicide, they are all biocides. It should never be a surprise that something intended to kill weeds causes non-Hodgkin’s lymphoma (NHL). It should never be a surprise that an insecticide doesn’t just kill the target corn borer, but kills bees, pollinators and birds and causes cancer. They are biocides and it is impossible to limit them to specific living organisms. They will always go to other living organisms and if they’re neurotoxins, they will cause neurological damage; if they’re carcinogenic, they’ll cause cancer. It is Neanderthal biology to assume that you can use biocides massively and not affect other living organisms, not just the one you’ve targeted it for.
Ironically, and this is true of some insecticides like neonicotinoids, they are actually very ineffective in killing the target insects, but very effective in killing bees and other off-target organisms. Of course, Carey Gilliam is right. But the context we should be aware of, as Rachel Carson wrote in 1962, is that pesticides are biocides capable of killing many other living organisms.
ARTY: In 2018 Dewayne Johnson, a school groundskeeper, was awarded $289 million after a jury said that glyphosate caused his terminal cancer. In that trial, the Monsanto Papers revealed that Monsanto knew for decades that Roundup is carcinogenic.
ANDY: There have been two state cases and one federal court case. In the Dewayne Johnson case, the jury originally awarded $289 million. There was the federal case in which Edwin Hardeman, who was just using Roundup in his garden, got $80 million. And the Pilliod couple were originally awarded $2 billion. There were three trials and Monsanto lost all three of them, and in two of them there were specific science hearings by the jury. Monsanto/Bayer has about 125,000 cases coming. Because of these cases Bayer’s stock plummeted. They had to make a move, which was the recent $9.6 billion settlement, the largest out-of-court product liability settlement in legal history.
ARTY: But Bayer, who bought Monsanto in 2018, continues to sell Roundup, doesn’t have to add warning labels about its safety, and has not admitted any liability or wrongdoing. Is this a fair settlement?
ANDY: I see the settlement not only as unfair but also illegal. $9.6 billion – it may be as low as $8.8 billion – for settling about three-quarters or more of those cases is about $100,000 on average per case. Given the massive jury awards, that does not seem just.
There’s a piece of that settlement that I believe is grossly illegal. It hasn’t really been publicized as much as it should be. You still have, depending on the source, 20,000-30,000 cases that did not sign onto this. Bayer/Monsanto seems confident that those people are going to somehow come around, but they haven’t. There’s no reason to think thousands of them will.
But there is one really pernicious element of this settlement, and that’s the $1.1 billion. They were worried about all future litigation. What if another 125,000 or 200,000 people, who have been using Roundup, discover, in the next year or two, that they have non-Hodgkin’s lymphoma and file lawsuits? Then this settlement does them no good.
The agreement says that any future litigant, who hasn’t yet filed a case or hired an attorney, has to become part of a couple of sub-classes. They have to await the decision of a five-member expert panel that will be appointed by the defendants and the plaintiffs’ attorneys, who will review all the old material, but not new material, and try and come to a conclusion about whether glyphosate is likely to cause cancer, and if so, at what dosage. It is anticipated that it could take at least four years.
I’ve read the actual agreement. Under it all future litigants don’t get to file right away. They have to file within this agreement. So, if you’ve just discovered you’ve got NHL and you’re ready to file suit, you become part of the sub-class. And you have to wait at least four years while the science panel decides whether glyphosate is a probable carcinogenic. The science panel can request an extension so this could mean a delay of 6 or 8 years or more. If they ultimately say it’s not carcinogenic, you’re done — no case, no liability. If they decide it is, then you can proceed with your case, but you’ve pre-agreed not to pursue punitive damages.
Think of the potentially tens of thousands of farmworkers and others who are just learning from these other trials of the connection between Roundup and their cancer, or will be getting cancer within the next year or two or three. This part of the agreement denies them due process. They have a right to a trial. But not under this agreement. They have to wait indefinitely and have to give up their right for punitive damages. I think it’s illegal; I think it’s a scandal.
There is some good news however, the settlement has to be approved by federal District Court Judge Vince Chhabria. He has recently told Bayer/Monsanto’s attorneys that he is not in favor of this part of the agreement. More specifically he noted that juries and judges should determine future cases not a science panel. This has Bayer/Monsanto going back to the drawing board hoping to come up with some new way to limit their liability from a flood of future cases, and one that the judge will approve. Hopefully Chhabria will hold the line, not go with some revised science panel idea, and will not accept anything less than timely judge and jury trials for all future litigants. Given their past losses this is exactly what the corporation does not want, but what those they have so grievously harmed deserve.
The World Health Organization had the greatest cancer experts in the world say that glyphosate is a probable carcinogen. Why in the world would you have a five-expert panel appointed by some defense and plaintiff attorneys and Bayer come to a better conclusion? Why shouldn’t everyone who has non-Hodgkin’s lymphoma have the right to go to a jury just like Hardeman, Johnson and the Pilliods did and have their day in court? To be denied that because this chosen panel of five people come to a different conclusion than the WHO, I’ve never seen anything like it, and as I said, I think it’s not only grossly unfair, I think it’s illegal.
ARTY: As you mentioned, the International Agency of Research of Cancer (IARC), an agency of the World Health Organization has declared glyphosate as a probable carcinogen. The EPA says it is not a likely carcinogen. What is the relationship between FDA and EPA and companies like Monsanto/Bayer? Who do those regulatory agencies serve and how do they come up with their conclusions?
ANDY: Let’s talk about some specifics. The herbicide Dicamba was to be used in herbicide resistant crops to take the place of Roundup, which is increasingly ineffective due to weed resistance. In June, the Center for Food Safety won a case in which the Ninth Circuit Court of Appeals determined that in approving Dicamba, the EPA had not done its homework, had not looked at the relevant risks, and had not looked at the field studies research. Therefore, the court declared that biocide illegal. So, we don’t need to figure out whose side EPA is on. It took us several years of litigation to finally get this in front of a court with the EPA dodging and adding new elements to its various directions as to how you can spray it, when you can spray it, etc. Finally we nailed them down, and when a court looked at it, they said that the EPA has done nothing but listen to Monsanto studies and did not look at what’s actually going on in the fields – the millions of acres being destroyed by Dicamba drift. The ruling is shockingly stark. It says the EPA’s approval of Dicamba is illegal.
EPA has been carrying Monsanto’s water for years. Unfortunately, many of our regulatory agencies are captured by the corporations. There are no real restrictions against regulators cycling back into the industry. There’s a revolving door where members of these companies often get high positions in the agencies and then cycle out. It’s been an open scandal for the 30 plus years that I’ve been practicing as an attorney. Much of our work is necessary because of the corruption at the agencies. We have to take them to court to have the courts be the referee to make sure we actually get real regulation. We can undo the work of FDA, EPA and USDA when they are simply doing the bidding of the major corporations.
When an international agency like IARC, which bases decisions on international researchers from around the world including leading cancer research at the National Institutes of Health, come to the conclusion that glyphosate is a possible carcinogen, that has much more credibility than EPA and those who have, over and over, been shown to be biased. They look out for the interests of the corporations and not the public. That is what they’ve been doing for a very long time. They have really been sacrificing our health, the health of our communities, and our environment for the bottom line of corporations.
That’s what EPA has been doing under Democratic as well as Republican leadership. Dicamba-resistant crops were approved under Obama; 2-4D-resistant crops were approved under Obama. The neonicotinoid bee-killing pesticides were approved under the Obama administration. To blame it on any single administration would be inaccurate. We’ve sued Trump, but we’ve also sued the Obama administration because of the corruption within these regulatory agencies.
The Environment Protection Agency, in its name, is supposed to protect the environment. It’s supposed to protect endangered species. The Food and Drug Administration is supposed to be there to protect our health. When they care more for the bottom line of these corporations than who they are supposed to protect, it’s an ongoing scandal, and the remedy is more often than not judicial review, going to court. It’s the only way to stop them. Hopefully we can stop them at the ballot box and get enlightened legislators and an enlightened president who will hold them to the standards that they should uphold, but in lieu of that hope, the way we do it is go to court.
ARTY: The Center for Food Safety is battling the use of Roundup.
ANDY: Biocides are supposed to be registered every few years. Roundup was about 10 years overdue because the EPA kept delaying. Finally, they couldn’t keep delaying it so they approved and re-registered glyphosate despite all of the evidence about its risks. We litigated that, just like we litigated Dicamba, and we are also litigating Corteva’s product Enlist Duo, which is the combination of 2-4D and glyphosate.
Roundup, at least in terms of GMO use, is becoming obsolete. About 150 million acres of cropland has Roundup resistant weeds. Surveys show that about 75 percent of farmers are reporting Roundup Ready weed problems. Originally Monsanto said there would be no resistance in weeds. But about four years after the GMO revolution in the early 2000s, we began to see resistance and now it’s massive.
Roundup is the last broad spectrum, and by their terms, relatively non-toxic biocide. There has been no new herbicide-killing chemical developed since 1984. We are at peak herbicide. That’s why they went backwards to 2-4D and backwards to Dicamba. These chemicals had been put aside because of Roundup. But with the obsolescence of Roundup because of the super-weed problems, the next two generations were either going to be a 2-4D combination with Roundup, which has the same problems as Roundup, or Dicamba, which was the solution that Bayer/Monsanto came up with. Now that Dicamba has been knocked out by our litigation, Corteva is going to try to take over the market with their product Enlist Duo, a combination of 2-4D and glyphosate. But we filed a lawsuit against EPA’s approval of Enlist Duo and we’re waiting for a decision. This is really the beginning of the end of GMOs because well over 90 percent of all GMOs have been designed to resist these biocides.
But there is a larger issue. The industrial system is based on several delusions. One is the delusion of extraction that thinks we can extract elements of nature – whether it be water, soil, or fish – faster than they can be regenerated, and that somehow that isn’t going to be a prescription for extinction and death. The pathology is the delusion that somehow the market system of supply and demand is better than nature’s system of regeneration. That’s a profound pathology. The economics of extraction is an economics of death and extinction.
The second pathology is that we can eradicate things that don’t fit the system. We can eradicate weeds; we can eradicate insects and successfully have an industrial monoculture. Well, no you can’t. Nature bats last. The weeds will adapt. The insects will adapt. The fungi will adapt. We’re at peak fungicides too, which is almost as serious. Antibiotic resistance is a result of the same kind of thinking. It’s the same paradigm that says you can eradicate Indigenous Peoples because of what Vandana Shiva calls the monoculture of the mind. This delusion of eradication is coming to a very hard landing. That entire enterprise is what I call a dead paradigm walking; it’s really a zombie paradigm, but it still is so damaging to the Earth and so damaging to our health. Corporations profiting from it will continue to push it to the very last pesticide dollar. They’re going to push it to the very end of their profit margin. The faster we can hasten the demise of these biocides, the better because with this paradigm there is no future.
Agroecology and organic are the future. The future has to be regenerative economics, not market driven economics, if we’re going to survive and have a mutually enhancing relationship with nature. Nature doesn’t deal with money; nature deals in diversity. We’ve got to shift the metric for assessing human progress away from industrial production towards promoting biodiversity.
Food production needs to be in accord with the regenerative patterns and capacity of the Earth. We have to use agroecological methods to promote biodiversity as our strength in agriculture instead of eradicating biodiversity for industrial profit and industrial growth, which has been and will continue to be catastrophic.
There are so many great thinkers and people working on it. I’m enthusiastic about the progress that the organic and the regenerative agriculture movements are making leading the paradigmatic change towards regeneration, which needs to apply to all human activity.