The Supreme Court Puts the EPA Between Patients and the Jury

and this may change every future chemical exposure case

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Much of the reaction to the Supreme Court’s recent Roundup decision has focused on politics. Many supporters of the Make America Healthy Again movement viewed the decision as a profound betrayal. During the campaign, Donald Trump promised to clean up America’s food supply, while Robert F. Kennedy Jr. built much of his public career questioning the safety of glyphosate and other agricultural chemicals. Then, in one of the administration’s first major Supreme Court cases involving pesticide regulation, the federal government supported Bayer’s legal position. To many, that appeared to be the end of the conversation.

I think it is actually the beginning.

The more I have studied the Court’s opinion, the Solicitor General’s brief, and the broader legal framework, the less I believe this case is really about glyphosate. Nor is it simply about Bayer. It raises a much larger question, one that should concern conservatives, libertarians, environmentalists, trial lawyers, physicians, and anyone who cares about the relationship between science and government.

Who decides when science has changed?

That may sound like an odd question. After all, don’t scientists answer scientific questions?

Not entirely.

Science produces evidence. Regulators decide whether that evidence justifies changing policy. Courts decide how the law applies. Juries determine disputed facts. For most of American history, those institutions operated as overlapping checks on one another. None possessed complete authority over the others, and that was largely by design.

The Roundup decision may have shifted that balance in ways that extend far beyond one herbicide.

The legal issue before the Supreme Court was not whether glyphosate causes cancer. The justices did not weigh competing epidemiological studies or review animal experiments. They did not decide whether the International Agency for Research on Cancer or the EPA had the better scientific argument.

Instead, the Court answered a much narrower legal question: when EPA approves a pesticide label under the Federal Insecticide, Fungicide, and Rodenticide Act, can state courts later conclude that the manufacturer should have included stronger warnings?

The Court’s answer was largely no.

For years, individuals who developed non-Hodgkin lymphoma after repeated Roundup exposure brought failure-to-warn lawsuits in state courts. Their argument was straightforward. Regardless of what EPA concluded years earlier, Bayer knew or should have known that newer scientific evidence justified stronger warnings. Juries heard expert testimony, evaluated the evidence, and in many cases agreed.

Those lawsuits did more than compensate injured plaintiffs. They became one of the few mechanisms outside the federal regulatory system through which emerging scientific evidence could be tested in public. Discovery compelled companies to produce internal documents. Experts were examined under oath. Regulators, manufacturers, physicians, and scientists all found themselves defending their conclusions in an open courtroom.

The Supreme Court has now dramatically narrowed that pathway.

State failure-to-warn litigation has historically been one of the most important mechanisms for updating the public's understanding of environmental and health risks. Tobacco, asbestos, pharmaceuticals, lead paint, PFAS, and countless other products all illustrate the same pattern. Scientific evidence evolves. Regulators often move slowly. Litigation forces disclosure of internal documents, exposes competing scientific opinions to public scrutiny, and sometimes reveals risks that regulators either overlooked or underestimated.

The Roundup decision potentially changes that dynamic for pesticides and maybe for other products, outside of the EPA's purview. If EPA-approved labels largely preempt state failure-to-warn claims, then one of the principal mechanisms by which new scientific evidence historically entered the public record becomes substantially narrower. That may produce a more uniform regulatory system, but it will delay or even stymie recognition of emerging risks, and is one of the most important criticisms raised by the Court’s decision.

This decision does not eliminate every state warning law. California's Proposition 65, for example, is a separate statutory warning system and raises different legal questions. The issue before the Supreme Court was much narrower, but arguably more significant. It involved the traditional state-law failure-to-warn lawsuit, one of the principal ways new scientific evidence has historically been tested in court. By largely preempting those claims for EPA-approved pesticide labels, the Court shifted far greater responsibility to the federal regulatory process. The end result being that there are now fewer opportunities to challenge outdated science.

The practical consequence reaches far beyond the thousands of Roundup cases that may now disappear. If EPA’s approval of a warning label largely preempts state-law failure-to-warn claims, then EPA effectively becomes the gatekeeper for deciding when evolving science is sufficient to justify new warnings. That authority no longer belongs primarily to juries hearing new evidence in individual cases. It rests with the federal regulatory process.

Science does not stand still. It never has. Regulatory decisions are made using the best evidence available at a particular moment in time. Five years later, ten years later, twenty years later, the scientific landscape may look very different. We have seen that happen repeatedly with pharmaceuticals, tobacco, asbestos, PFAS, endocrine disruptors, lead, and countless other environmental exposures. Glyphosate is simply the latest example.

The question, then, is not whether EPA once reached the correct conclusion. The question is what happens when the evidence evolves faster than the regulatory process.

If federal law now prevents state juries from hearing that newer evidence, and EPA chooses not to revisit its earlier conclusions, who protects the public?

That question extends far beyond glyphosate. Tomorrow it may involve atrazine. Or PFAS. Or microplastics. Or another chemical we have barely begun to study. Every regulatory decision is made with incomplete information. That is the nature of science. Knowledge accumulates. Hypotheses are refined. Consensus changes. Good regulators understand that today’s conclusions are always provisional.

The legal system has traditionally recognized that reality. The Supreme Court’s decision suggests a different model, one in which the federal agency increasingly becomes the institution responsible for deciding when the science has changed enough to justify new warnings.

That is an extraordinary concentration of authority, and it raises a question that deserves far more discussion than it has received.

Can Congress constitutionally create a regulatory system in which one federal agency becomes the exclusive gatekeeper for whether evolving scientific evidence ever reaches an American jury?

So How Did We Get Here?

If this decision has such sweeping implications, how did the federal government end up supporting Bayer’s position?

The answer is more complicated than many headlines suggest.

The legal dispute centered on the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the federal law that gives EPA authority to evaluate pesticides, approve their labels, and regulate how they are sold and used in the United States.

Under FIFRA, pesticide manufacturers must submit extensive scientific data to EPA demonstrating that a product can be used without causing “unreasonable adverse effects on the environment” when used according to its label. If EPA approves the product and its labeling, manufacturers are generally prohibited from changing that label without EPA approval.

The Trump administration, through Solicitor General D. John Sauer, argued that allowing state-law failure-to-warn lawsuits to proceed would undermine the federal pesticide labeling system created by Congress under FIFRA. The brief repeatedly emphasized that EPA had concluded glyphosate was “not likely to be carcinogenic to humans” and had repeatedly approved Roundup’s label without a cancer warning. If juries in fifty states could effectively require different warnings through tort law, the administration argued, manufacturers would be caught between conflicting state requirements and a federally approved label. For readers interested in how the scientific evidence has evolved beyond EPA’s earlier reviews, we examine the more recent literature in Homesteading for Health.

That argument ultimately prevailed.

Justice Brett Kavanaugh, writing for the majority, concluded that Missouri’s failure-to-warn lawsuit conflicted with the federal regulatory system established by FIFRA. EPA had repeatedly approved Roundup’s label without a cancer warning after determining that glyphosate was “not likely to be carcinogenic to humans.” The Court reasoned that if a state jury could nevertheless hold Bayer liable for failing to include a cancer warning, it would effectively require Bayer to place a warning on its label that EPA had declined to require. In the Court’s view, that conflict meant federal law preempted the state-law claim.

Importantly, the Court did not conclude that glyphosate is safe or that it cannot cause cancer. Nor did it decide which side has the stronger scientific evidence. The decision turned on a legal principle: when Congress creates a federal labeling system and gives EPA authority to approve those labels, can individual states use tort law to impose different warning requirements? The Court answered that question largely in the negative.

The practical effect, however, is far broader than the legal reasoning. EPA’s determination that glyphosate did not require a cancer warning now carries extraordinary legal weight. Thousands of failure-to-warn lawsuits challenging that determination are expected to disappear, leaving many plaintiffs with little or no meaningful recourse through the courts. In effect, EPA’s scientific judgment has become the gatekeeper for whether these claims can even be heard.

What makes this particularly interesting is that the federal government’s position changed.

The Biden administration did not embrace Bayer’s broad preemption argument. The Trump administration did. That reversal has received remarkably little public explanation beyond the legal arguments contained in the Solicitor General’s brief.

Ironically, the Biden administration’s position aligned more closely with several principles that have defined the modern conservative legal movement. Leaving these claims in state court preserved the traditional role of juries, respected state common law, and avoided expanding the federal administrative state. The Trump administration instead argued for national regulatory uniformity under FIFRA, placing EPA’s regulatory determinations above conflicting state-law claims for warning labels.

That makes this decision difficult to reconcile with two of the Supreme Court’s most celebrated recent opinions, Dobbs and Loper Bright.

In Dobbs, the Court returned abortion policy to the states because the Constitution did not create a federal right. In Loper Bright, it rejected Chevron deference and reaffirmed that courts, not administrative agencies, determine the meaning of statutes. Both of these cases were celebrated by constitutional conservatives, including myself, as returning power to the people and to the states.

Yet in the Roundup case, EPA’s scientific determination became the foundation for preempting state-law warning claims. The legal doctrines are different, but the practical effect is striking. The Court limited agency authority in one context while giving extraordinary practical force to an agency’s scientific determinations in another.

That raises another obvious question.

Why did the administration decide this was the right case in which to defend EPA’s authority?

What we do know is that EPA Administrator Lee Zeldin has consistently framed pesticide regulation as a matter of following the Administrative Procedure Act, respecting existing scientific review processes, and ensuring that agency actions survive judicial scrutiny. When asked publicly about glyphosate, he has repeatedly declined to declare it either safe or unsafe, instead saying that EPA will “let the scientists do the science” and follow the law.

We also know that Zeldin met with Bayer’s chief executive while the litigation was pending. Internal EPA planning documents obtained through the Freedom of Information Act indicate that Bayer intended to discuss its litigation, Supreme Court strategy, and labeling issues. EPA has characterized the meeting as a routine discussion with a regulated company and has denied that it was intended to influence the litigation.

Reuters has also reported that Administrator Zeldin later met repeatedly with leaders of the grassroots MAHA movement to discuss glyphosate, pesticides, PFAS, plastics, and other chemical exposures. Coincidentally, just last Monday, I attended a private MAHA Action event where Administrator Zeldin spoke. Throughout his remarks, he carefully avoided expressing any opinion about whether glyphosate or other agricultural chemicals present significant health risks. Instead, he repeatedly returned to one theme: EPA would follow the science and follow the law.

It was a lawyer’s answer, not a public health answer.

The audience noticed. During the reception afterward, the conversations in the room made it clear that many longtime MAHA supporters were deeply dissatisfied. One male attendee, whom I had never met, walked up to Jill and I and said loudly, “That man is full of shit.” Whether one agrees with that assessment or not, it reflected a broader frustration that EPA appeared more interested in defending its existing regulatory framework than seriously confronting the growing scientific debate surrounding these chemicals.

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This article is not really about glyphosate. It is about who gets to decide when science has changed, and whether Americans should still have access to the courts when new evidence emerges. Those questions deserve far more attention than they have received.

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Robert F. Kennedy Jr. approaches these questions primarily through the lens of public health and precaution. Lee Zeldin approaches them as an administrative lawyer charged with defending the integrity of the EPA’s regulatory process. Those perspectives will almost inevitably produce different priorities when litigation reaches the Supreme Court.

What is troubling is why the administration concluded that preserving EPA’s existing regulatory position was more important than preserving the traditional role of state juries in evaluating evolving scientific evidence.

Even more troubling is what this decision implicitly asks the public to accept. It assumes that EPA’s previous scientific determinations remain sufficiently current to justify closing the courthouse doors to thousands of plaintiffs, despite more than a decade of additional research and an expanding scientific literature. If EPA is going to become the effective gatekeeper for when evolving science may be considered by the courts, then the agency assumes an extraordinary obligation to revisit its conclusions promptly, transparently, and without institutional bias.

That is a remarkably high level of trust to place in any federal agency.

The FDA has been subjected to years of public scrutiny over concerns about regulatory capture, revolving-door employment, industry influence, and the pace at which it responds to emerging scientific evidence. The EPA, by contrast, has largely escaped that same level of public examination, despite making decisions that affect virtually every American through our food supply, drinking water, and environment.

This case changes that equation.

If the courts are now saying that EPA’s scientific determinations effectively foreclose many state-law failure-to-warn claims, then EPA’s scientific independence is no longer simply a regulatory issue. It becomes a constitutional issue affecting access to the civil justice system itself. The agency’s scientific reviews, conflicts of interest, advisory committees, interactions with regulated industries, and willingness to revisit earlier conclusions deserve the same level of public scrutiny as the FDA.

If the agency is going to become the nation’s principal gatekeeper for determining when evolving scientific evidence may reach a jury, then the public has every right to demand complete transparency, rigorous independent review, and confidence that regulatory decisions are being driven by science rather than institutional inertia or the interests of the industries being regulated.

Congress assumed that EPA would continually revisit pesticide registrations as science evolved. FIFRA requires registration reviews at least every 15 years, but the EPA also has the authority to require label changes much sooner when new evidence demonstrates they are warranted. The agency has exercised that authority repeatedly for other pesticides, including dicamba, paraquat, chlorpyrifos, and several neonicotinoids.

Glyphosate presents a very different picture.

Glyphosate entered EPA's current registration review in 2009. The agency issued an Interim Registration Review Decision in 2020 reaffirming its conclusion that glyphosate was "not likely to be carcinogenic to humans."

In 2022, however, the Ninth Circuit concluded that EPA had not adequately explained portions of its human-health analysis and had also failed to satisfy several environmental review requirements, including its obligations under the Endangered Species Act. Rather than defend the decision, EPA withdrew it and began revising its analysis. More than fifteen years after the review began, the agency is still working toward a final determination.

In other words, one of the world’s most widely used herbicides has remained under regulatory review for well over a decade and a half, while the scientific literature has continued to expand.

The Supreme Court’s decision rests on an implicit assumption: that EPA will revisit labels whenever new scientific evidence warrants it. EPA unquestionably possesses that authority. The question is why it hasn’t used its authority to do so quickly enough. If federal preemption now prevents state juries from considering whether warnings should have changed, the public becomes almost entirely dependent upon EPA’s willingness to reconsider its own earlier conclusions. That places extraordinary importance on the transparency, independence, and timeliness of EPA’s scientific review process.

There is another aspect of this case that has received remarkably little attention.

The Supreme Court’s analysis, like much of the public debate, focused primarily on whether glyphosate causes cancer. That was understandable because the underlying lawsuits involved plaintiffs diagnosed with non-Hodgkin lymphoma. But cancer is no longer the only scientific question surrounding glyphosate, and many researchers would argue it is no longer the most important one.

Over the past decade, the scientific literature has expanded dramatically. Researchers are now investigating endocrine disruption, alterations of the gut microbiome, chronic inflammation, oxidative stress, metabolic disease, reproductive and developmental toxicity, neuroinflammation, possible effects on autism spectrum disorder and ADHD, chronic low-dose exposure, cumulative exposure to multiple agricultural chemicals, and whether commercial glyphosate formulations behave differently than glyphosate alone.

Whether each of these findings ultimately proves causal remains an active area of scientific investigation. That is not the point.

The point is that the scientific questions themselves have changed.

EPA’s earlier reviews focused primarily on whether glyphosate posed an unreasonable carcinogenic risk. Today’s science is asking a much broader set of questions about chronic disease, metabolism, neurological development, endocrine signaling, the microbiome, and cumulative environmental exposures. Those are fundamentally different questions from the ones the agency was asking twenty years ago.

If federal preemption now means EPA becomes the effective gatekeeper for whether evolving scientific evidence may support new warnings, then EPA’s responsibility extends beyond periodically revisiting yesterday’s conclusions. It must also continually ask whether it is investigating the right questions in the first place.

Otherwise, the legal system freezes not only yesterday’s scientific conclusions, but yesterday’s understanding of what health risks deserve investigation. That is a dangerous place for both science and public health.

But this is the direction this Supreme Court decision has led to, and, frankly, this ruling does not bode well for the health of America.

By: JGM/RWM

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