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According to the lawsuit, which was filed in the U.S. District Court for the Western District of Virginia, plaintiff Elvira Reyes-Hernandez is a migrant farmworker who worked on Virginia tree farms between 2015 and 2018, during which she sprayed the herbicide Roundup regularly.
In 2015, the World Health Organization's International Agency for Research on Cancer (IARC) listed glyphosate, the active ingredient in Roundup, as "probably carcinogenic to humans." Over the years, a wide body of scientific evidence has also pointed to glyphosate exposure as causing an increased risk of Non-Hodgkin lymphoma.
Reyes-Hernandez was diagnosed with Non-Hodgkin lymphoma in 2019 and subsequently sued Monsanto, claiming that Roundup exposure had a role in causing her cancer.
“Monsanto is very likely making calculated risks based on the characteristics of the people who are using their products,” Katy Youker, an attorney for Lawyers’ Committee for Civil Rights Under Law and a co-counsel for the case, told Environmental Health News (EHN).
By excluding non-U.S. citizens from the settlement program, she said, Monsanto is effectively putting up a huge barrier for migrant farmworkers — most of whom do not have citizenship but are at the forefront of Roundup exposure — from seeking restitution.
This case, if sided by the court, could send an encouraging message to migrant and undocumented farmworkers who wish to bring legal action against the company. However, legal experts and farmworker advocates are still pessimistic about the prospect of them coming forward, especially when facing a myriad of hurdles and obstacles.
Reneged Monsanto settlement offer
In 2020, facing more than 100,000 similar Roundup cancer lawsuits nationwide, Monsanto’s parent company, Bayer, agreed to pay approximately $10 billion to put much of the litigation to rest.
As part of the settlement program, the complaint noted, Bayer allocated $412.8 million to the three law firms that were representing Reyes-Hernandez, which would be distributed the funds among their more than 3,000 claimants — or an average of $120,000 per plaintiff.
Reyes-Hernandez accepted the settlement offer in late 2020. Months later, however, Monsanto pulled out of the deal because she was not a U.S. citizen, the lawsuit alleged, and her lawyers “abruptly dropped” her as a client “without first asking her or obtaining her consent.”
The suit accuses Monsanto, Bayer, as well as Reyes-Hernandez’s former attorneys of violating Section 1981 of the U.S. Code Title 42, which was originally part of the Civil Rights Act of 1866. The statute establishes that all individuals in the United States should have equal access to sue and enforce contracts.
"Tip of the iceberg”
In addition to seeking monetary damages, Reyes-Hernandez’s current legal team, who said her case could be the "tip of the iceberg,” also requested the court to “order the defendants to identify all individuals who have been excluded from participating in the Roundup litigation or settling a claim relating to Roundup due to their citizenship status.”
Related: Communities on the front lines of pesticide exposure fight for change
“One of the concerns that we have is that the people who were exposed to the most of Roundup are not going to be United States citizens,” Shawn Collins, who is the co-counsel of this case, told EHN. “We're asking the judge to force Monsanto and these lawyers to turn over the documentation about how many other times this may have happened — in other words, are there more Elviras out there.”
Bayer, Monsanto, and the defendant law firms in the suit did not provide EHN with any comments on the case.
GED Lawyers LLP, one of the firms named as a defendant, filed a motion to dismiss the lawsuit, arguing, among other factors, that Reyes-Hernandez did not meet Monsanto’s qualifications for participation in the settlement, and that because she has obtained other counsel and filed a new lawsuit she has not suffered a “material adverse effect.”
“The Defendant firms did not withdraw from the representation of Plaintiff because she was not a U.S. Citizen, rather, they withdrew because Plaintiff could not recover from Defendant Monsanto’s settlement fund based on Monsanto’s imposed limitations on recovery,” the motion to dismiss states.
The judge in the case has yet to rule on that motion.
Bayer and the other law firms have until March 17 to file their responses.
Monsanto’s “calculated risks”
After Monsanto excluded Reyes-Hernandez from the settlement, she was able to find a new lawyer and last July refiled her case(which is currently pending) in St. Louis County, Missouri. However, without a settlement opportunity, Collins said Reyes-Hernandez will likely face a more taxing journey in receiving compensation. “If you don't settle a case, then the only way you can win it is to take it all the way to a jury trial, which is enormously expensive,” he said.
From a legal perspective, migrant farmworkers are “already on an extremely unlevel playing field”, Laurie Beyranevand, a law professor at Vermont Law School who is not involved in this case, told EHN in an email. “A case like this, if successful, would clearly establish the legal right for migrant and other undocumented workers to access the same legal remedies and enforce contract provisions in the same manner as U.S. citizens.”
Barriers for farmworkers to come forward
Even so, Beyranevand said migrant and undocumented workers are still unlikely to come forward in the legal system for fears of employer retaliation, deportation and the loss of employment, as EHN has previously reported. But for those that do, she said, “it’s important that the law protect them from being denied access to remedies on the basis of citizenship.”
Jeannie Economos, a health and safety coordinator for the Farmworker Association of Florida who is not involved in the case, also told EHN that the likelihood of migrant farmworkers taking a legal step against Monsanto remains slim.
“We can spend an hour or more with somebody documenting the conditions in the workplace, but then when we go to make a complaint — not even a lawsuit — they say, ‘No, I don't want to do that’,” she said. “They don't want to risk it.”
If adopted, the proposed changes would represent the first modification to drinking water standards for new chemicals under the Safe Drinking Water Act since 1996.
PFAS, short for per-and polyfluoroalkyl substances, are a group of potentially harmful chemicals used in multiple products including nonstick pans, cosmetics, some clothing, food packaging and firefighting foams. They are linked to multiple negative health outcomes including some cancers, reproductive problems and birth defects, among others. The chemicals don’t break down readily in the environment, so are often called “forever chemicals.” The nonprofit Environmental Working Group has found PFAS contamination at more than 2,800 locations in all 50 states, including in many public and private drinking water systems.
Related: What are PFAS?
The proposed changes would regulate two chemicals that are no longer in use, PFOA and PFOS at 4 parts per trillion. Four other chemicals — PFNA, PFHxS, PFBS and GenX — would be regulated based on the hazard of the mixture of them. While the six chemicals in the proposal are common, there are an estimated more than 9,000 types of PFAS compounds.
If the regulations are adopted, water system operators would have to test for the chemicals. If they are found above the thresholds, they’d have to take action — by installing additional treatment, finding a new water source or other methods. Public water treatment systems would have about three years to comply.
EPA Administrator Michael S. Regan said in a statement the proposal is “informed by the best available science, and would help provide states with the guidance they need to make decisions that best protect their communities.”
“This action has the potential to prevent tens of thousands of PFAS-related illnesses and marks a major step toward safeguarding all our communities from these dangerous contaminants,” he added.
Last year the EPA released lifetime health advisories for GenX, PFBS, PFOA and PFOS, and opened up $10 billion in grant funding — via the 2022 Infrastructure Investment and Jobs Act— to assist communities dealing with PFAS and other emerging contaminants.
Environmental groups seek PFAS phase-outs
Environmental groups lauded the new proposed changes — and urged a complete phase-out of PFAS in products.
“We applaud the Biden administration for following the lead of the states and stepping up to protect communities from these toxic ‘forever chemicals,’” said Sarah Doll, national director of Safer States, in a statement. “We urge the federal government to continue to follow the lead of states and phase out the production and use of these chemicals in favor of safer solutions so that we stop adding PFAS to our already polluted water, land, and air.”
Ten states — Maine, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont and Wisconsin — have already established standards for individual PFAS in drinking water. Many retailers — most recently REI — are phasing out the chemicals as well.
Liz Hitchcock, federal policy program director for Toxic-Free Future, said in a statement that the regulations are an important stop but “to prevent further PFAS contamination, we must put an end to uses of PFAS chemicals in firefighting foams used by military and civilian firefighters and in consumer products like food packaging and textiles.”
The new proposed regulation will open for public comment, and then the agency will make a final decision — likely later this year.
Our civilization needs commercial chemicals to prosper and survive. But as a chemist, I long ago arrived at a conviction — our civilization can’t last long without making a clean getaway from the endocrine-disrupting chemicals that litter today’s chemical enterprise and are harming us as seriously as climate change.
This means we must have appropriately wired people to accomplish the great escape from chemicals that are disrupting our endocrine systems. Engager is my term for that wiring. Let’s explore why this disposition is key for European Union leadership in pursuing their new chemicals strategy for sustainability.
Engager
The engager sustainability disposition moves its bearers to positive action when scientific facts demand that injustice cannot be ignored. You can detect this in talking with them. They conduct their own scholarship rather than parrot rumors. They follow up where possible by acquainting and allying themselves with the sources of the information. They have fidelity to scientific data and justice, and can tune out the outside noise.
People with the engager disposition cannot ignore the social and environmental justice issues, especially the ability of endocrine-disrupting chemicals to adversely impact families for generations after an incumbent generation has been exposed.
But like all powerful organisms, the modern chemical enterprise possesses a healthy immune system and resists the efforts of engagers. Think of the previous sustainability dispositions I’ve written about and where their bearers turn up — the executives, PR spin doctors, faux experts, lobbyists and trade association operatives.
"But like all powerful organisms, the modern chemical enterprise possesses a healthy immune system and resists the efforts of engagers."
In academia, especially American academia, researchers are scared to lose research funding by embracing controversy — and this dread intimidates folks from adopting the engager disposition.
While great engager-bearing sustainability scholars can be found in many academic institutions, academic administrations are often sustainability incompetent. They measure their progress in the technical advances of their faculty and students, development gifts, constructions, and, admirably, social justice reforms. Too many academic administrators are sleepwalking through flattering trustee meetings and cheerful college functions while being largely unresponsive to the calls of sustainability. They ignore the most vital of all academic domains where human ingenuity can best honor the gift of life and build transgenerational justice that is the measure of a civilization’s sustainability competence.
In our unsustainable world, academia could instead adopt a collective engager disposition to better honor its duty to seek and act on the truth that might set our civilization free.
Engager influence grows
I have come wearily to this judgment with chemical sustainability matters; only engagers have the assets of disposition, character and intellect to matter. This typically also means that engagers have had to look outside the system they are hoping to change for support at every level.
In my experience with many engagers, they each possess remarkable intellectual and creative function, an open mind with advanced natural abilities that deftly process abstract thought while keeping political thought in perspective. Engager bearers are prepared to risk their professional and even personal security when the situation calls for it to reject the status quo when it makes no sense to them in science or in justice.
This places a heavy burden and responsibility upon the individuals with engager dispositions. But to borrow phrasing from Martin Luther King Jr., the arc of the chemical future bends toward their solutions.
Fortunately, engager bearer numbers are growing, as is their influence. The birthing of the EU’s Chemicals Strategy for Sustainability, which explicitly incorporates both endocrinological science and the promise of funding for necessary innovations in safe and sustainable chemistry, is likely to accelerate those trends. As companies learn that their sustainability efforts are rewarded by the market for safer products, while their old, unsustainable chemicals are punished, the acceleration will be enhanced.
It’s depends on us, not the chemicals
In the end, whether we survive the threats of endocrine-disrupting chemicals or succumb to their perils depends on us, not on the chemicals. Escaping these chemicals owns the center of the ethical stage of the chemical enterprise. The more Europe’s leaders of the Chemicals Strategy for Sustainability actualization stay focused on their ethical duty to protect the future from the money-first present, the more successful the strategy and our civilization will be.
Engager bearers inspire me. The responsible engager heroes include not only spectacular scientists who are often Socratic visionaries, but an indubitable Gandalf (Pete Myers), journalists, authors, policy advocates, congresspeople and parliamentarians, students, institutional officials, and, occasionally, regulators.
The galvanized brilliance of engager researchers and communicators heartens me to believe that European civilization will indeed batter its weary way through the industrial endocrine-disrupting chemical defenses to a sustainable future.
Terrence J. Collins, Ph.D., is a Teresa Heinz professor of green chemistry, and director of the Institute for Green Science at Carnegie Mellon University. His views do not necessarily represent those of Environmental Health News, The Daily Climate, or publisher Environmental Health Sciences.
The author thanks the Axios Fund, Korein-Tillery LLC and the Heinz Family Foundation for support of CMU's Institute for Green Science.