U.S. Solicitor General D. John Sauer filed a brief on Monday urging the U.S. Supreme Court to review Monsanto’s federal preemption arguments in the sprawling litigation over its Roundup pesticide.
The brief comes more than five months after the Supreme Court invited the solicitor general’s input in the petition, which Monsanto filed to overturn a $1.25 million Roundup verdict in 2023 in Missouri’s St. Louis City Circuit Court. Bayer, which owns Monsanto, petitioned the Supreme Court to rule on whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts claims that it failed to warn about Roundup’s risk of non-Hodgkin lymphoma.
“The decision below is incorrect and implicates a conflict of authorities on the question presented,” Sauer wrote. “EPA has consistently approved Roundup labels without a cancer warning, based on the agency’s conclusion that glyphosate is not likely to be carcinogenic in humans.”
In 2022, the Supreme Court refused to take up Monsanto’s petition to overturn an $80 million Roundup verdict in the first federal bellwether trial, called Hardeman v. Monsanto, which took place in the Northern District of California in 2018. At that time, then-Solicitor General Elizabeth Prelogar, under the Biden administration, wrote an amicus brief stating that FIFRA did not preempt state law failure-to-warn claims. But the Trump administration had backed Monsanto’s preemption defense in the same case when it was before the U.S. Court of Appeals for the Ninth Circuit.
Sauer, who switched the Department of Justice’s position in a case involving campaign contributions, has been a prominent figure in cases against the Trump administration involving various issues including immigration policy and federal government workforce cuts. He was Trump’s criminal defense lawyer before being appointed earlier this year.
Monsanto, represented by Paul Clement, former U.S. solicitor general now at Washington, D.C.’s Clement & Murphy, had argued against inviting the solicitor general’s brief, which could delay review of its Roundup petition. But a ruling in favor of Monsanto could help Bayer resolve thousands of Roundup cases, with juries returning defense verdicts, ending in mistrials or issuing jury awards, some more than $2 billion. Bayer has noted that regulators, including the Environmental Protection Agency, have found that Roundup’s key ingredient, glyphosate, is safe.
“The support of the U.S. government is an important step and good news for U.S. farmers, who need regulatory clarity,” Bayer CEO Bill Anderson said in a statement. “The stakes could not be higher as the misapplication of federal law jeopardizes the availability of innovative tools for farmers and investments in the broader U.S. economy.”
More than a dozen amicus groups, including many representing America’s agricultural community, raised concerns that Monsanto could remove glyphosate should the Supreme Court rule against it.
“This case raises an important question about the scope of FIFRA’s preemption provision,” Sauer wrote in Monday’s brief. But he mirrored Bayer’s April 4 petition that urged review given that the U.S. Court of Appeals for the Ninth and Eleventh Circuits had ruled against Monsanto in 2021 and 2024 in finding no federal preemption in Roundup cases, while the Third Circuit, in a 2024 opinion called Schaffner v. Monsanto, disagreed.
“Since that time, a conflict has developed among the courts of appeals on the questions of whether FIFRA expressly preemptions state-law tort claims premised on petitioner’s failure to warn its customers about potential cancer risks created by use of Roundup,” Sauer wrote. “In light of the Third Circuit’s intervening decision in Schaffner and the change in administration, the United States has reexamined the arguments it pressed before this court in Hardeman and has returned to its previous position as to the scope of FIFRA preemption. Under that approach, EPA’s approval of Roundup labels without a cancer warning, combined with an EPA regulation that prohibits petitioner from adding such a warning without agency approval, preempts respondent’s failure-to-warn claim.”
The case before the Supreme Court involved plaintiff John Durnell, whose $1.25 million Roundup verdict was upheld by the Missouri Court of Appeals this year. On April 1, the Missouri Supreme Court opted not to hear the case.
David Frederick of Kellogg, Hansen, Todd, Figel & Frederick in Washington, D.C., who represents Durnell, did not respond to a request for comment.
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