Attorneys for a popular herbicide manufacturer and the state argued before the Arkansas Supreme Court on Thursday over whether the state Plant Board should give similar weight to in-state and out-of-state research when writing agricultural regulations.
They also debated whether the board's composition violated the Arkansas Constitution.
Missouri-based seed-and-chemical giant Monsanto and six Arkansas farmers allege in separate suits that the makeup of the board is unconstitutional because the panel isn't accountable to anyone. The Plant Board's composition since 1917 has been a mix of members appointed by the governor and others by industry groups.
Thursday's oral arguments before the state's high court were the latest wrinkles in the yearslong fight between the Plant Board and a group of farmers and Monsanto over the board's regulation of the controversial herbicide dicamba.
In 2016, faced with some three dozen complaints that dicamba drifted off target and damaged crops that could not tolerate it, the Plant Board voted to not allow Monsanto's dicamba, called XtendiMax, into Arkansas for the 2017 crop season. The company has been embroiled in a legal conflict with the state ever since.
Monsanto's suit also takes issue with a regulation from the Plant Board that favors Arkansas-based research as guidance for the board's decision. The company claimed that an unwritten board policy of giving priority to research by University of Arkansas weed scientists was a violation of U.S. interstate commerce law, but Pulaski County Circuit Judge Chris Piazza rejected this claim in a December 2019 ruling.
The Plant Board in May 2018 approved "Regulation 7" that states, in part, "The Board considers the environment in Arkansas to be unique, therefore there will be a higher consideration given to research that is specific to Arkansas. Research conducted by scientists from universities within the state will be the primary source of expertise to allow the Board to determine if the data is scientifically sound and relevant to growing and cropping conditions in the state of Arkansas."
Elizabeth Blackwell, the attorney representing Monsanto, said the company objected to the second sentence of the regulation.
"It creates this kind of cottage industry where registrants are incentivized to be funneling their research dollars, specifically, to researchers at universities in the state," she said.
She called the regulation "a thumb on the scale in favor of local economic interests," but Justice Shawn Womack said he doubted this was discriminatory enough to be unconstitutional.
Justice Courtney Rae Hudson asked Blackwell to point out how Monsanto had been treated differently than other companies from outside Arkansas that conduct plant research.
"[Show us] some kind of factual allegation that shows what the problem is that we are supposed to fix for you today," Hudson said.
Blackwell said she did not believe Monsanto has been treated differently from other companies.
"We don't think they're bad researchers, but in some instances, Monsanto wants to do research in different locations," Blackwell said.
The court rejected part of Monsanto's lawsuit with a 6-1 ruling in June 2019 because new regulations in place had rendered some of the company's initial claims moot. However, the same ruling asserted that the Plant Board "must address the merits of Monsanto's claims" that the board violated state law and had other legal conflicts in 2016 and 2017 in deciding how to limit farmers' use of dicamba herbicides manufactured or marketed by Monsanto and other companies.
Piazza then ruled in December 2019 that allowing trade groups to name members to the Plant Board was an unconstitutional delegation of powers by the Legislature. The Plant Board voted 13-0 later that month to appeal the ruling to the state Supreme Court.
The Plant Board was established in 1917 by the General Assembly primarily to respond to an outbreak of plant diseases that threatened the state's apple industry. The board's current composition is nine members appointed by trade groups and seven members appointed by the governor. Two members, representing the University of Arkansas System's Agriculture Division, don't have voting privileges.
Attorneys for Bayer, which bought Monsanto in 2018, believed Piazza struck the entire 1917 statute, including the section allowing the governor to appoint some board members. The attorney general's office believed Piazza ruled against only the part of state law that allows agriculture trade groups to name representatives to the board.
The six farmers suing the state hope the high court will "make a determination that positions appointed by private businesses are basically void," said Grant Ballard, the attorney representing the group. He said the 1917 statute violates Article 5 of the state constitution, which states that the people of Arkansas "are to be governed by their elected representatives."
"The regulated citizenry has no voice in the process by which the individuals are appointed to the state agency," Ballard said. "In fact, the public is out of the sphere of influence and does not know the process by which these individuals are appointed to a state agency."
Justice Rhonda Wood asked if the requested ruling would vacate too many seats on the Plant Board and leave it without a quorum, and therefore without the ability to enforce regulations. Ballard said the ruling would not effect too many members of the board and pesticides are already heavily regulated at the federal level.
Blackwell said the Plant Board would still be able to function if some appointments are deemed unconstitutional, and the affected members would remain in their positions until constitutionally appointed members are able to replace them.
Jennifer Merritt, the senior associate attorney general arguing on behalf of the Plant Board, said the state constitution does not grant any entity the specific power to appoint members to state boards, so that power lies with the state Legislature because its members are elected by the public. Merritt also said Blackwell's argument did not allege an existing detriment to Monsanto or its researchers due to Regulation 7 or claim that it violated U.S. interstate commerce law.
Wood said she thought Monsanto's complaint clearly stated the "continuing injury" by citing several court rulings since 2017, but Merritt repeated that Monsanto could not claim an actual injury. She also said Regulation 7 was not discriminatory because it did not explicitly require research from within Arkansas.
"Monsanto does not have standing to raise claims of unnamed third parties, nor does Monsanto have standing to raise claims for injuries that are speculative, for injuries that haven't happened yet," Merritt said.