The Roundup Weedkiller Case Before the Supreme Court Could Cost Bayer Billions — or Change Tort Law Forever

On April 27, the protest outside the Supreme Court had an odd taste. A few members of Congress, Make America Healthy Again influencers, and people who had obviously never stood next to each other before were mixed in with the typical environmental activists and farmworker advocates. A person was carrying a sign that said, “People > Poison.” Another stated, “Protect People Not Pesticides.” It’s difficult to ignore the fact that, of all things, Roundup has evolved into one of the few American fights in which the boundaries between left and right are blurred.

The dispute in the courtroom developed in a similarly chaotic manner. Paul Clement, speaking on behalf of Bayer with the composure of someone who has done this numerous times, relied heavily on a single argument: states are not permitted to impose warning requirements that exceed what the EPA has approved under the federal pesticide law, FIFRA. He was supported by the deputy solicitor general of the Trump administration. However, the questions weren’t based on ideology. Roberts retaliated. Gorsuch sounded doubtful. Jackson appeared to share their worry that granting the EPA the last say on a label could essentially stifle new research.

Here, the stakes are particularly tangible. Over 100,000 Roundup claims have already been settled by Bayer for about $11 billion, and between 61,000 and 65,000 cases remain unresolved. In February, the company announced a $7.25 billion settlement that would cover the majority of the remaining debt. However, if too many plaintiffs choose not to participate, Bayer has the right to withdraw from the settlement. The deadline for opting out is June 4. The company continues to read tea leaves from Washington in part because investors appear to think that a favorable Supreme Court decision could put an end to the litigation.

On the day of the argument, the market’s decision was instructive. At first, the stock hardly moved, but by the end, it had dropped by roughly 2%. Not in a panic. It is not a rally. Simply the sound of people who are unsure of what to think.

Beneath all of this is a deeper problem. The decision could go well beyond Roundup if the Court rules in favor of Bayer. One of the few remaining options available to consumers when a federal agency acts slowly or not at all is state failure-to-warn claims. When you remove that, the entire structure of product liability in the United States changes. Attorneys for plaintiffs are aware of this. Industry associations also do, which is why a lengthy list of corporate amicus briefs ended up on the docket. Twelve states, the majority of which were red, supported Bayer. Durnell was supported by seventeen states, the majority of which were blue. Ohio, Florida, and Texas submitted their own briefs. There are divisions even within the politics of politics.

MDL Judge Vince Chhabria in California, meanwhile, has his own reservations about the proposed settlement, especially the section that asks those without cancer to decide this summer whether to forgo future claims. He declined to block the deal, but he acknowledged that it was messy. If the Supreme Court makes a decision in June that drastically alters the math, it’s still unclear if the structure will remain intact.

As this develops, it seems as though Bayer is attempting to close a chapter that the rest of the nation isn’t quite prepared to complete. Lawsuits continue to be filed. Attorneys continue to receive calls from new plaintiffs. In the midst of all of this, the Court will render a decision that may subtly redefine the boundaries between federal power and the right to file a lawsuit.