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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.”
The sound of droplets hitting concrete goes on for months. I see many of the same unhoused people riding public transit all day. In the morning, one direction, and in the evening, the opposite – still in the same seat where I saw them hours earlier.
They sit out of the way, quiet. People around them pull cords, press buttons. All the while, they’re sleeping, existing, surviving. Sometimes, I find myself projecting my busy day onto them, often joking with some of them,“damn, you still here?!” But once the brief laughter subsides, I see them as the humans they are and understand: it’s warm and safe here. For some, the winter holidays are not about family and friends. Rather, it’s hours, days and months of survival.
Whenever I think of the unhoused people in Oregon and the rest of the country, I reflect that they are half a billion in number, and are emblematic of a broken affordable housing system. A history driven by discrimination and racism, bloated state housing institutions and a lack of understanding of what equitable housing looks like has shaped the inhospitable landscape of affordable housing in the U.S. The most marginalized are pitted against each other fighting for shelter in underfunded, unhealthy and dilapidated developments with the promise of a better future. A solution may exist, but America will need to look outside itself and ask the deeper questions: who builds affordable homes, how they are built, where they are placed, and what is their end goal? And answering them will require a radical solution.
Manufacturing the affordable housing crisis
A NYC housing protest in 2016.
Credit: Informed Images/flickr
To understand how we got to this bleak landscape, we need to examine the history of affordable housing in the U.S. The first affordable housing efforts came in 1937, when the federal government created the United Housing Act, which greenlit loans to public housing groups that were focused on low-rent housing construction. World War II railroaded early public housing developments in cities due to the need for immediate single-family veteran housing. The 1940s saw an influx of affluent suburban residents who had the financial flexibility to move out of the city. This diffusion of people quickly became more than just the relocation of peoples, but ultimately the redistribution of wealth, race and adequate housing.
This essay is also available in Spanish
At the end of the 1940s segregationist policies took root. Congress passed the Housing Act of 1949, which aimed at developing affordable housing in cities. But things didn’t go as planned. Mostly Black Americans moved into the low-income housing, staunchly different from the white-picket-fence homes of white people in suburbia. Black Americans found themselves round up like cattle with few choices to improve their housing situation – they could only move to similarly crumbling neighborhoods.
In 1973, President Nixon placed an 18-month moratorium on public housing spending. This decision prevented progress of urban affordable projects, effectively stopping development projects, which led to the proliferation of what we know today as the derogatory phrase “housing projects.” When no longer supported federally, various states soon followed Nixon’s steps; city communities soon faltered, trapping low-income Black Americans in decaying, underfunded buildings.
Many Black Americans in low-income urban housing developments had mounting housing needs — such as building maintenance and toxic material removal.
And to see how this still manifests today, look no further than the largest housing authority in the U.S.
Bloated state institutions
James Weldon Johnson Houses in East Harlem, NYC.
Credit: Zach Korb/flickr
Disinvestment affects even the largest public housing authority in the U.S., the New York City Housing Authority (NYCHA). NYCHA serves just more than half a million residents, yet the U.S. and New York state have steadily moved away from funding NYCHA since 1998, according to the agency’s 2022 fact sheet. The result is more than $40 billion – yes with a “b” – in major pending damages and only about 12,500 NYCHA employees supporting residents and maintaining the backlog of pending repairs.
The systemic disinvestment in the NYCHA prevents residents from prioritizing healthier materials for their homes. Moving away from toxic materials — such as lead-based paint and moldy building interiors — is mired in construction bureaucracy. Residents’ only option is often renovating their homes when NYCHA is planning to renovate a large number of apartments, “often as part of an even larger upgrade that includes building systems nearing the ends of their useful lives,” according to NYCHA’s most recent design guidelines. This means residents have no reassurance to timely upgrades to improve their health and well-being. Whether it’s mold, lead paint or rat infestations, affordable housing residents continue to get piecemeal solutions to unhealthy — sometimes toxic — problems in their homes.
To be clear: the people who make up the various state housing institutions are not solely to blame – it’s a system problem. A system that, among other unreasonable behaviors, encourages NYCHA superintendents to falsely record fixes. Continuing to operate in a system that does not have the consistent state or federal backing is a waste of time.
The situation is so dire that a solution might seem impossible. A part of me even feels disillusioned. I’m stubborn, though, and I searched for examples of possible solutions in Europe. I realized I might have found the radical solution I was looking for.
A radical affordable housing solution
In the 1980s, the city of Vienna, Austria, collaborated with private housing developers by buying land and enabling the housing developers to build on this government-owned property. Fast-forward, Vienna populated the nearly 200,000 units in its social housing market with primarily low-income residents. Opting to move away from owning residential developments (like what we see in the United States), Vienna is pushing that ownership to private developers, who have the financial muscle to repair, maintain and upgrade buildings.
Privatization does not mean that developers act with impunity. Vienna evaluates proposals based on architectural quality, environmental performance, social sustainability and cost. Additionally, private developers who choose to collaborate with the Viennese government must rent half of the new apartments to low-income residents (low income in Vienna is defined as paying no more than 20% to 25% of their household income for housing) in exchange for low-interest loans. Unlike the U.S., where affordable housing developments are stigmatized as “public housing,” Vienna uses the term “social housing,” which centers people and their community irrespective of how much money they make. The developments never become “that place where only poor people live.”
A great example: Vienna’s 12th district, Kabelwerk. Comprising about 1,000 or so subsidized residential units, the Kabelwerk community also has a local metro station and various communal shops – amenities that are a direct result in the country's investment in social housing communities, not away from them. Kabelwerk’s residential units also serve as an indirect intersection between various groups of people including homeowners, renters, refugees, students and individuals who may require assisted living. The intersection of these groups is designed to get people together of various backgrounds, dismantling barriers, in lieu of erecting them. Austria’s approach to social housing is a great example of how systematic investment into affordable housing contributes to positive living conditions for low-income residents.
As American state-led agencies like NYCHA and others look for answers within the same decrepit system, the need for a completely revamped affordable housing system becomes painfully evident. The way we as a nation approach affordable housing should begin with centering the people in the homes, staying away from social stigmas and empowering decision-makers to build healthy communities. We need projects that are completed, and are maintained during their lifespan.
A strong person, home or community begins with its foundation. It’s time to rebuild ours.
Nsilo Berry is a health impact researcher for the Healthy Building Network, where he works to research the health associated outcomes of building products in historically marginalized communities, as well as the environment. Connect with him on Linkedin.
This essay was produced through the Agents of Change in Environmental Justice fellowship. Agents of Change empowers emerging leaders from historically excluded backgrounds in science and academia to reimagine solutions for a just and healthy planet.
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.