October 28, 2020

Volume X, Number 302

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October 27, 2020

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October 26, 2020

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Prop 65 Victory For Chemical Industry In Monsanto Case Has Been Appealed

On June 22, Judge William B. Shubb of the US District Court for the Eastern District of California granted Monsanto’s motion for summary judgment and imposed a permanent injunction on the enforcement of Proposition 65 for glyphosate (the active ingredient in Roundup) in the closely followed case National Association of Wheat Growers v. Becerra.  The ruling was important to many in the chemicals and agricultural world, and we provided an Expert Analysis of the district court decision in Law360.

However, as we expected, the California Attorney General appealed the decision to the Ninth Circuit Court of Appeals on September 9, 2020 (Case No. 20-16758), with the main issue on appeal being whether the First Amendment bars the State of California from requiring a Prop 65 Warning.

While mandatory to file, the Attorney General’s September 17, 2020 Mediation Questionnaire provides that he “believes the content and method of delivering such a [Prop 65] warning are both issues susceptible to a mediated resolution.”  This may mean the Attorney General could be considering a mediated agreement in the case if possible.  As we stated in our Law360 analysis, if the district court decision is upheld in the Ninth Circuit, it will set a significant precedent in the Prop 65 world and deal a huge blow to the State of California.

For now, we must wait while the parties go through the appeals process.  We will continue to monitor this case to its final resolution and provide reader updates.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 269
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About this Author

Kendra Sherman, Squire Patton Law Firm, Environmental Compliance Attorney
Partner

Kendra’s practice encompasses all areas of environmental law. She represents a broad spectrum of clients, including metals, mining, iron and steel, and chemical companies, waste management and environmental services companies (including solid waste landfills and construction and demolition debris facilities), and public law clients, including cities and villages. Kendra defends clients in federal and state enforcement actions related to air, water quality, wetlands and solid and hazardous waste matters, and represents clients in appeals and challenges related to Clean...

614-365-2726
Danelle Gagliardi Environmental Attorney Squire Patton Boggs Columbus, OH
Associate

Danelle Gagliardi represents a wide variety of clients in complex environmental transactions, litigation and regulatory compliance, including those in the metals, mining, iron and steel, oil and chemical industries, as well as real estate developers and shipping and logistics companies. She has a strong background in the Clean Air Act (CAA), Clean Water Act (CWA), Toxics Substances Control Act (TSCA), Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and California’s Proposition 65 (Prop 65).

Danelle has a multistate, global practice involving all aspects of environmental law. She has represented clients in challenges related to state and federal enforcement actions and rulemakings, negotiated consent decrees and defended clients in cost recovery or contribution claims under CERCLA in multiple jurisdictions. She has also advised both US and international clients on diligence aspects of complex transactions in the areas of environmental engineering/infrastructure, chemicals, nuclear power and renewable energy.

Danelle regularly counsels both US and international clients in a variety of industries on compliance and enforcement matters related to Proposition 65, California’s clear and reasonable warning regulations, and she has experience guiding clients in multiple states through the process of obtaining environmental covenants under state voluntary action programs for brownfield redevelopment.

Prior to joining the firm, Danelle interned for Judge Jeffrey S. Sutton on the US Court of Appeals for the Sixth Circuit. She is heavily involved in pro bono efforts through Columbus Legal Aid’s Wills Clinic and Operation Legal Help Ohio, which assists low-income veterans for their legal needs. She serves on the Board of the Association of Women in the Metal Industries – Columbus Chapter as the Finance/Marketing Director and has a Master of Laws from the University of Queensland, T.C. Bierne School of Law in Australia.

614-365-2820
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